3.2 Hearsay exceptions 2

Question 1

Which statutory provision preserves the common law exceptions to the general rule against hearsay?

Answer 1

Section 118 Criminal Justice Act 2003

Question 2

What are the common law exceptions to the rule against hearsay?

Answer 2

Section 118(1) Criminal Justice Act 2003

1. Public information
2. and 3. Reputation as to bad character or family
3. Res gestate
4. Confessions
5. Admissions by agents
6. Statements in furtherance of common enterprise
7. Expert evidence - drawing upon a body of expertise

Question 3

What does the common law rule on public information hearsay allow?

Answer 3

Section 118(1) Criminal Justice Act 2003
1.
(a) published works dealing with matters of a public nature (eg, histories, scientific works, dictionaries and maps)
(b) public documents (eg, public registers)
(c) records (eg, records of certain courts, treaties, Crown grants), or
(d) evidence relating to a person’s age or date or place of birth.

Question 4

What does reputation or family tradition include?

Answer 4

Section 118(1) Criminal Justice Act 2003
3.
Any rule of law under which in criminal proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving—
(a)pedigree or the existence of a marriage,
(b)the existence of any public or general right, or
(c)the identity of any person or thing.

Question 5

When does the res gestae exception apply?

Answer 5

Section 118(1) Criminal justice Act 2003
4.
(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).

Question 6

What is the leading case on res gestae?

Answer 6

R v Andrews [1978] AC 281

Question 7

R v Andrews [1978] AC 281

Answer 7

Res gestate requires that the possibility of concoction can be excluded.

The mind of the maker of the hearsay statement must have been dominated by a dramatic, startling or unusual event.

The jury’s attention must be brought to any evidence suggesting the statement was a mistake.

Question 8

Why is the res gestae exception useful?

Answer 8

Res gestae enables 999 calls and initial statements to police to be used in evidence.

It is much easier to apply than the “in fear” exception under s.116(2)(e) CJA.

Question 9

When is the common enterprise exception useful?

Answer 9

Conspiracy prosecutions.

Question 10

Which statutory provision deals with inconsistent previous statements by witnesses?

Answer 10

Section 119 Criminal Justice Act 2003

Question 11

When can a witness’s previous inconsistent statement be admitted?

Answer 11

Section 119(1) Criminal Justice Act 2003
If in criminal proceedings a person gives oral evidence and—
(a)
he admits making a previous inconsistent statement, or
(b)
a previous inconsistent statement made by him is proved ,

Question 12

What can a witness’s previous inconsistent statement be used as evidence to prove?

Answer 12

Section 119(2) Criminal Justice Act 2003
It can be used to prove what the witness previously said. 

Under the old common law rule, a previous inconsistent statement could be used only to prove inconsistency.

Question 13

Which statutory provision deals with consistent previous statements by witnesses?

Answer 13

Section 120 Criminal Justice Act 2003

Question 14

What are previous consistent statements useful for proving?

Answer 14

Section 120(2) Criminal Justice Act 2003

That a statement by the witness was not recently fabricated

Question 15

Which statutory provision deals with multiple hearsay?

Answer 15

Section 121 Criminal Justice Act 2003

Question 16

What is multiple hearsay?

Answer 16

X said that Y said that Z said.

Normal hearsay is just X said Y said.

Question 17

When is multiple hearsay never admissible?

Answer 17

Section 121(1)(a) Criminal Justice Act 2003
For unavailable witnesses (s.116) or under the preserved common law exceptions (s.118)

Question 18

When is multiple hearsay admissible?

Answer 18

Section 121(1) Criminal Justice Act 2003
when -
(a)
either of the statements is admissible under section 117, 119 or 120,
(b)
all parties to the proceedings so agree, or
(c)
[in the interests of justice]

Question 19

What can the defendant do the undermine hearsay evidence?

Answer 19

Section 124(2) Criminal Justice Act 2003
D may adduce evidence which
(a)
would have been relevant to undermine the credibility of the witness
(b)
with the court’s leave - evidence that could have been put to the witness but could not have been adduced
(c)
evidence to prove that the witness contradicted himself

Question 20

What happens where a case relies on unconvincing hearsay evidence?

Answer 20

Section 125(1) Criminal Justice Act 2003
After the close of the prosecution case, if the prosecution -
(a)
relies wholly or partly on hearsay evidence, and
(b)
the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

Question 21

What if hearsay is superfluous?

Answer 21

Section 126(1) Criminal Justice Act 2003
The court may refuse to admit a statement as evidence of a matter stated if—
(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.

Question 22

What directions must judges give to a jury that has heard hearsay evidence?

Answer 22

Crown Court Compendium 14-1

(a) There has usually been no opportunity to see the demeanour of the person who made the statement.
(b) The statement admitted as hearsay was not made on oath.
(c) There has been no opportunity to see the witness’s account tested under cross-examination
(d) where evidence undermines the credibility of the hearsay the jury should be reminded.

Question 23

Which Part of the Criminal Procedure Rules deals with hearsay evidence?

Answer 23

Part 20

Question 24

Which hearsay exceptions require a party to give notice before adducing hearsay evidence?

Answer 24

CrimPR 20.2(1)

(a) section 114(1)(d) (evidence admissible in the interests of justice);
(b) section 116 (evidence where a witness is unavailable);
(c) section 117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings);
(d) section 121 (multiple hearsay).

Question 25

Who must a party serve notice on in order to adduce hearsay evidence?

Answer 25

CrimPR 20.2(2)(a)

The court and the other party.

Question 26

What must notice of intent to adduce hearsay include?

Answer 26

CrimPR 20.2(2)
(b)
(i) identify the evidence that is hearsay,
(ii) set out any facts on which that party relies to make the evidence admissible,
(iii) explain how that party will prove those facts if another party disputes them, and
(iv) explain why the evidence is admissible; and

(c) attach to the notice any statement or other document containing the evidence that has not already been served.

Question 27

When must the prosecutor serve notice of intention to adduce hearsay evidence?

Answer 27

CrimPR 20.2(3)
… not more than—
(a) 28 days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 14 days after the defendant pleads not guilty, in the Crown Court.

Question 28

When must the defendant serve notice of intention to adduce hearsay evidence?

Answer 28

CrimPR 20.2(4)

As soon as is reasonably practicable.

Question 29

When must a party serve notice that it objects to hearsay evidence?

Answer 29

CrimPR 20.3(2)(c)
serve the application as soon as reasonably practicable, and in any event not more than 14 days after—
(i) service of notice to introduce the evidence under rule 20.2,
(ii) service of the evidence to which that party objects, if no notice is required by that rule, or
(iii) the defendant pleads not guilty

whichever of those events happens last

Question 30

What must the objection to adducing evidence contain?

Answer 30

CrimPR 20.3(d)

(i) which, if any, facts set out in a notice under rule 20.2 that party disputes,
(ii) why the evidence is not admissible, and
(iii) any other objection to the evidence.