Hearsay - excpetions

Question 1

A statement is hearsay if…

Answer 1

1) it’s made out of court
2) the person that made it intended another person to believe it
3) it’s adduces as evidence of the matter stated (s114(1) and s115 CJA 20003)

Question 2

s114(1) provides that hearsay isn’t admissible unless it falls into one of the four exceptions - what are they?

Answer 2

1) any of the statutory exceptions in the CJA 2003 apply

2) any of the common law exceptions preserved under the CJA 2003 apply

3) all the parties agree

4) the court uses its statutory discretion to admit the hearsay, in the interests of justice

Question 3

Exceptions to the general rule against hearsay - hearsay may be admissible if…

Answer 3

1) the witness is unavailable (s116)

2) it’s a business document (s117) - however, the court has the discretion to exclude such a business document if it’s satisfied that the statement’s reliability is doubtful (s117(6) and (7)

3) it’s in the interests of justice to admit it (s114(1)(d))

Question 4

Does the court have discretion to exclude unfair prosecution evidence?

Answer 4

Yes (s78 PACE)

Question 5

What does s116 require?

Answer 5

That the maker of the statement is identified, so it cannot be used to introduce anonymous hearsay - it doesn’t allow in evidence that would have been inadmissible in live evidence, such as evidence of bad character that isn’t admissible through one of the gateways in ss100 or 101

Question 6

If unfitness of a person to be a witness because of their bodily or mental condition refers not to their fitness to physically attend court, then what does it refer to?

Answer 6

To their ability to give evidence once there
- there’s 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 7

What does the court have to consider in deciding whether it’s reasonably practicable for the witness to attend or whether steps taken to find the witness were reasonably practicable?

Answer 7

The court has to consider the normal steps taken to secure the attendance of a witness
- cost is a relevant factor & it has to be balanced against the importance of the evidence that the witness would give
- ss 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 8

Is there a requirement that the dear that’s felt by the witness should have been caused by the defendant?

Answer 8

No - s116 (fear)
- authorities differ as to how the court should approach an enquiry as to whether the reason for the absence of a witness is fear

Question 9

Davies 2007

Answer 9

‘courts are ill-advised to seek to test the basis of fear by calling witnesses before them’

Question 10

What view did the court take in Shabir 2012

Answer 10

That every effort should be made to get the witness to court to test the issue of fear

Question 11

Why is it important that when police officers seek to persuade a witness to attend court to give evidence, they don’t give the witness any assurance that their witness statement can be read to the court if they’re afraid to attend?

Answer 11

Because this would provide the witness with an obvious incentive to say that they’re in fear

Question 12

To what standard does the court have to be satisfied that the witness doesn’t give evidence through fear?

Answer 12

To the criminal standard (a causative link between the fear and failure to give evidence must be established)

Question 13

Sellick 2005

Answer 13

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 can’t complain that the right to a fair trial has been infringed on the basis that the defence wasn’t able to cross-examine the witness