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Flashcards in LG4 Hearsay Deck (40):
1

What is hearsay?

Statutory definition contained in CJA 2003, s 114(1) & 115(3).
Paraphrasing-
A statement made out of court where the purpose or one of the purposes of the maker of the statement is to cause another to believe that what is stated in the statement is true, or to cause another person to act or machine to operate on the basis that what is stated in it is true, and the statement is tendered in evidence on the basis that what is stated in it is true.

CJA 2003, s 114(1) & 115(3) considered in more detail shortly.

2

General rule re hearsay


Hearsay statements are inadmissible unless they come within an exception.

Exceptions are set out in CJA 2003, s 116 (witness unavailable), s 117 (documentary hearsay), s 118 (common law exceptions which are preserved eg. s. 118 para 4, res gestae) and s 114(1)(d) (interests of justice).

3

Justifications for general rules about hearsay

A number of factors make it potentially unreliable
Perception- maker may perceive facts inaccurately;
Memory- maker of statement may remember facts inaccurately and hearer may remember inaccurately what s/he was told;
Inaccuracy in what was said by maker (eg. colour- red/ dark red/ burgundy?);
Insincerity i.e. lies or not particularly concerned about being as truthful or accurate as possible;
(e) No cross-examination of maker of statement;
(f) Jury may attach too much weight to hearsay.

4

Issues with first hand testimony v hearsay evidence

With first hand evidence, there is an opportunity to test issues of accuracy, perception etc. directly in cross-examination

Here, no opportunity to XX the person who made the statement

5

Importance of opportunity to cross-examination

In Al Khawaja and Tahery v United Kingdom [2011] ECHR 2127 at [142], the Grand Chamber of the ECHR cited Sedley LJ in Secretary of State for the Home Department v AF [2008] EWCA Civ 1148, that it is
“seductively easy to conclude that there can be no answer to a case of which you have only heard one side”,
and
“…experience shows that the reliability of evidence, including evidence which appears cogent and convincing, may look very different when subject to a searching examination…”

6

Definition of hearsay under CJA 2003

CJA 2003, ss 114(1) & 115(1)-(3)

7

Criminal Justice Act 2003

CJA 2003 Part 11 Chapter 2, ss.114-134: hearsay provisions

CJA 2003 Part 11 Chapter 2, ss.114-134: hearsay provisions
Rule against hearsay preserved:
Section 114(1)
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated but only if [one of the exceptions applies]”

Consider 3 elements of hearsay in s.114(1)

8

Criminal Justice Act 2003

Section 114(1)- the element of a ‘statement’

Section 114(1)- the element of a ‘statement’
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated but only if [one of the exceptions applies]”

There is a statement which a party seeks to adduce.

9

Section 114(1)- the element of the statement not being made orally in the proceedings.

Section 114(1)- the element of the statement not being made orally in the proceedings.

“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated but only if [one of the exceptions applies]”

The statement the party seeks to adduce is not made in oral evidence.

10

Section 114(1)- the element that the statement is being admitted as evidence that what is stated in it is true.

Section 114(1)- the element that the statement is being admitted as evidence that what is stated in it is true.
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated but only if [one of the exceptions applies]”

The party seeks to admit the statement on the basis that it is evidence of any matter stated in it.

11

Section 114(1)

Section 114(1)
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated but only if [one of the exceptions applies]”
Statement
Not made in oral evidence in proceedings
Adduced as evidence of any matter stated

12

S 115(2) – definition of “…a statement…”

“any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form”
s.115(2) CJA 2003
oral
written
by gesture (see, Chandrasekara v R [1937] AC 220, PC)
pictorial

13

S.114(1) “…not made in oral evidence in the proceedings…”

Includes
any statements made ‘out of court;
any statements made in previous proceedings
(see also, s. 131 which covers evidence at a retrial & s.133 which
covers proof of statements in a document);
previous statements by the witness.

14

S.114 (1) “..admissible as evidence of any matter stated…”

Essentially, the statement is sought to be admitted on the basis that what is stated in it is true.

Note R v Twist [2011] 2 Cr App R 17: the effect of this decision is that assertions which are implied in statements are not ‘matters stated’ in the statement for the purposes of the hearsay provisions. Therefore, only a statement in which matters are expressly stated, come within the definition of hearsay. Very questionable, but should be followed according to CA in R v Mateza [2011] EWCA Crim 2587.

15

S.115(3) ‘Purpose of the maker' must have been:

S.115(3) ‘Purpose of the maker' must have been:
(a) to cause another person to believe the matter stated; or
(b) to cause another person to act or a machine to operate on the basis that the matter was as stated.

16

Deciding whether evidence is hearsay
R v Twist [2011] 2 Cr App R 17

When deciding whether a statement is hearsay for the purposes of s.114(1) & 115(2) & (3), the approach taken in Twist should now be followed (see R v Mateza [2011] EWCA Crim 2687).

The approach excludes implied assertions from the definition of a ‘statement’.

17

R v Twist [2011] 2 Cr App R 17, [8]-[9]

Hughes LJ
“…i) identify what relevant fact (matter) it is sought to prove;
ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises…”
iii) If yes, ask whether it was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.”

In the light of Twist, the following approach may be taken when deciding whether a statement is hearsay

18

Procedure for hearsay:

Identify the statement the party wishes to adduce in evidence

Is the statement not made in oral evidence in the proceedings?

What matter does the party say the statement proves?

Is there actually a ‘statement’ of that matter in the statement

Was it a purpose of the maker:
to cause another to believe that matter; or
to cause another to act (or a machine to
operate) on the basis that it is true?

No: Original evidence

Yes: Hearsay

19

Apply this approach to the following text message sought to be used in a drugs dealing case.
(R v Leonard (2009)173 JP 366)

Applying the approach in the diagram, to the text messages in R v Leonard
The statements are the text messages;
The statements not made in oral evidence;
Prosecution seeks to use the statements to prove D is a drugs dealer;
Probably no statement that he is a drugs dealer in the text messages, so not hearsay;
If court did hold there was a statement, then it was not the intention of sender to cause recipient to believe that he himself was a drugs dealer. So, not hearsay.

20

For drugs cases where text messages admitted to show involvement in drugs
dealing were held not to be hearsay, see
R v Chrysostomou [2010] EWCA Crim 1403, R v Singh Bains
[2010] EWCA Crim 873, as well as R v Twist [2011] 2 Cr App
R 17.

Note: in Leonard, which preceded Twist, the CA held messages were hearsay, but the case is regarded by some as having been wrongly decided or it is at least restricted by the particular argument advanced by the prosecution about what the evidence showed. Leonard provided here because it provides a set of facts to work through.


21

Examples of statements not made in oral evidence, but are not hearsay because they are not adduced as ‘evidence of the matter stated’

(a) Statements to prove the state of mind, knowledge or belief of the hearer: e.g. Subramaniam v Public Prosecutor [1956] 1 WLR 965, PC
(b) Statements to prove lies- eg Statements of co-Ds setting up false alibis admitted to show they were lying- Mawaz Khan v R [1967] 1 AC 454, PC
(c) Statements which are a fact in issue: eg Woodhouse v Hall (1980) 2 Cr App R 39.
(d) Statements to prove the state of mind, knowledge or belief of the maker e.g. Gilfoyle [1996] 3 All ER 883, CA- threats to show hostile intent

22

Exceptions to the rule against hearsay

Where a statement is hearsay it is admissible if it comes within an exception.


(a) Statutory exceptions (s.114(1)(a))
(b) Common law exceptions (s.114(1)(b))
Agreement (s.114(1)(c))
Interests of justice (s.114(1)(d))

23

(a) Statutory exceptions (s.114(1)(a))

s.116 CJA 2003: Unavailable witness
s.117 CJA 2003: Business etc. documents
s.119 CJA 2003: Previous Inconsistent Statements
s.120 CJA 2003: Previous Consistent Statements

24

s.116 CJA 2003: Unavailable witness

(a) oral evidence by maker admissible (s.116(1)(a))
maker can be identified (s.116(1)(b))
Maker unavailable because:
dead (s.116(2)(a))
unfit though bodily or mental condition (s.116(2)(b))
outside UK and not reasonably practicable to secure attendance (s.116(2)(c))
cannot be found despite the fact that reasonable practicable steps have been taken to find him (s.116(2)(d))
fear (s.116(2)(e)). Note ‘fear’ widely construed, leave is required & s.116(4) states factors court should have regard for.

25

s.117 CJA 2003: Business etc. documents

Document;
Oral evidence of statement in it would have been admissible (s.117(1)(a));
Document created/received in course of a business etc. (s.117(2)(a));
Supplier of information has personal knowledge (s.117(2)(b));
Where passed along a chain: each person (other than the original supplier of the information) received information in the course of a business etc. (s.117(2)(c)).
Statement prepared for criminal proceedings/investigation: (i) supplier unavailable for a reason stated in ‘s.116(2) reason’ (s.117(5)(a)); or (ii) supplier cannot be expected to remember (s.117(5)(b))

26

Common law exceptions

Admissions by agents

S.118(1) CJA 2003
- Res gestae, see paragraph 4- person emotionally overpowered by event; statement accompanied by act, and act can only be properly evaluated in conjunction with statement; statement relates to physical sensation or mental state (intention/emotion)

Confession or mixed statements, see paragraph 5.

Admissions by agents
- see s 118(1) paragraph 6(a): an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated (examples- R(Firth) v Epping Magistrates’ Court [2011] Cr App R 32 & R v Newell [2012] EWCA Crim 650)
Or Paragraph 6(b): a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.

27

CL exceptions continued


Statements in furtherance of common enterprise
See s 118(1), paragraph 7: Any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.
Admissibility of body of expertise
See s 118(1), paragraph 8: Any rule of law under which in
criminal proceedings an expert witness may draw on the body of
expertise relevant to his field.

28

(d) 114(1)(d): Interests of Justice

(d) 114(1)(d): Interests of Justice
Purpose: to cover situations where hearsay evidence is relevant and probative, but other exceptions do not apply.
See, Sparks v R [1964] AC 964 & R v Cooper [1969] 1 All ER 32
Not a ‘safety valve’ (Sak v CPS (2007) EWHC 2886)
Not to be used routinely (R v Y [2008] 1 WLR 1683 )
Not be applied so as to circumvent section 116 (R v O’Hare [2006] EWCA Crim 2512)
Hearsay evidence of anonymous witness’s not admissible under s.114(1)(d). See R v Fox [2010] EWCA Crim 1280.

29

(d) 114(1)(d): Interests of Justice continued

Factors to be taken into account: see s. 114(2)(a)-(i)
Probative value of statement, assuming it to be true, in relation to matter in issue;
Other evidence in relation to matter in issue;
How important the matter or other evidence is in context of case as a whole;
Circumstances in which statement made;
How reliable maker of statement appears to be;
How reliable evidence of making of statement appears to be;
Whether oral evidence of matter stated can be given and, if not, why not;
Difficulty involve in challenging the statement;
Extent to which that difficulty would prejudice the parties.

30

First hand hearsay

Multiple hearsay

First hand Hearsay: A B
B gives evidence of A’s statement

Multiple Hearsay: A B C
C gives evidence of B statement, which contains a statement by A

31

Multiple Hearsay

CJA 2003, s121 only allows a hearsay statement to be admissible to prove the fact that an earlier hearsay statement was made if:
either of the statements in the chain is admissible under ss117, 119 or 120;
all parties agree; or
value of evidence (including its reliability) so high that
interests of justice require its admission.

32

First hand hearsay


Multiple hearsay

See flow chart slide 41

33

Notice requirements: Crim PR 2015, r.20

Safeguards

Notice requirements: Crim PR 2015, r.20
R20(1): any party seeking to admit hearsay evidence under ss 116, 117, 114(1)(d) or s 121 must give notice (so, does not apply to common law routes for admissibility)
R20(2): That party must (a) serve notice on— (i) the court officer, and (ii) each other party; (b) in the notice— (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 attach to the notice any statement or other document containing the evidence that has not already been served.


34

Notice requirements continued


R 20(3)-A prosecutor who wants to introduce such evidence must serve the notice 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.
R20(4)- A defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable.
R 20(5)- A party entitled to receive a notice under this rule may waive that entitlement by so informing— (a) the party who would have served it; and (b) the court.

35

Safeguards

Capability

Credibility

Capability: CJA 2003, s 123, evidence relating to the competence of the maker of the statement may be adduced- similar to competence test (see s123(3)). Any issue about the capability of a person when he made the statement is to be determined in the absence of the jury (see s 123(4)).
Credibility: CJA, s124, evidence may be adduced which relates to the credibility of maker of statement. S 124(2)(a)- any evidence which would have been admissible as relevant to his credibility is admissible; S124(2)(b)- material in respect of which the witness’s answers would have been final had he been there; s 124(2)(c)- inconsistent statements.

36

Stopping the case where evidence is unconvincing

Safeguards

Stopping the case where evidence is unconvincing: CJA, 2003, s 125. At the close of the prosecution case which is based wholly or partly on a hearsay statement and the statement is so unconvincing that considering its importance to the case of the statement, the conviction of the defendant would be unsafe, the judge can acquit D or discharge the jury and order a retrial.

Exclusion of evidence: CJA 2003, s 126(1): superfluous hearsay; s 126(2) engages PACE 1984 s 78 and common law discretion to exclude.

37

More safeguards

Judicial directions- jury must be warned that the hearsay evidence has not been tested n cross examination and they must be sure it is true before acting on it.

ECHR, Art 6(3)(d) and sole or decisive hearsay

38

Article 6(3)(d) ECHR & ‘sole or decisive’ hearsay

Art 6(3)(d)
Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

Is Art 6(3)(d) infringed where hearsay evidence is the sole or decisive evidence in the trial?

39

Sole or decisive hearsay

Luca v Italy (2003) 36 EHRR 807- breach of Art 6(3)(d)
Al-Khawaja and Tahery v UK (2009) 49 EHRR 1 – breach of Art 6(3)(d)
R v Horncastle [2010] 2 WLR 47, SC- not a breach of Art 6(3)(d).
Leading authority: Al-Khawaja and Tahery v UK [2011] ECHR 2127
Sole/decisive evidence is evidence of “such significance or importance it is likely to be determinative of the outcome of the case…”;
Admission of Sole/decisive evidence may be admissible without breaching Art 6(3)(d) where there are counterbalancing measures and strong procedural safeguards.





40

Sole or decisive hearsay

Principles relating to the admissibility of sole or decisive hearsay applied in:
R v J [2011] EWCA Crim 3021: hearsay held not to be decisive (similarly, see R v Horsnell [2012] EWCA Crim 227);
R v Riat [2012] EWCA Crim 1509: no general rule that sole or decisive hearsay must be demonstrated to be reliable in order to be admitted, just that it is potentially reliable;
R v Shabir [2012] EWCA Crim 2564: example of decisive hearsay which was unreliable and where there were insufficient counterbalancing measures.