Unit 4 – Hearsay Evidence & Confession Evidence

Question 1

What is the statutory definitiion of hearsay evidence?

Answer 1

Statutory definition ‘Hearsay evidence’

• A statement made by a person;
• Outside of the court;
• Where the purpose is to cause another to believe or act on the content of that statement; and
• Where the statement is relied on as evidence of the matter stated.

“Statement” = defined in s 114(1) CJA 2003 as ‘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’.

Question 2

Examples of hearsay evidence in criminal proceedings…

Answer 2

(a) A witness repeating at trial what they had been told by another person.

(b) A statement from a witness being read out at trial instead of the witness attending court to give oral evidence;

(c) A police officer repeating at trial a confession made to them by the defendant;

(d) A business document being introduced in evidence at trial.

Question 3

What are the 2 kinds of hearsay?

Answer 3

1) First-hand hearsay

2) Multiple hearsay

Question 4

First-hand hear say is …

Answer 4

– Where details of the contents of the witness’s statement did not pass through anyone else before coming to the witness’s knowledge/attention. I.e., James told Jack, who gave hearsay evidence.

Question 5

Multiple hear say is …

Answer 5

– Where details of the hearsay have passed through multiple sources before coming to the witness. I.e., James told willy, who told sally who told John who told Jack, who then gave the hearsay evidence.

– Limited circumstances in which multiple hearsay can be admitted.

Question 6

What is the general rule on hearsay evidence?

Answer 6

Hearsay evidence is inadmissible unless one of the 4 exceptions apply.

Question 7

What are the 4 exceptions set out in s 114 CJA?

Answer 7

1. The parties agree for it to be admitted.
2. There is a common law rule making it admissible (as preserved by section 118)
3. The court is satisfied that it is in the interests of justice to admit it (the factors to consider are listed in s 114(2) CJA; or
4. It is admissible under another statutory provision (s 114(1)(a).

• Witness is missing / unavailable.
• Business documents
• Previous inconsistent statements by a witness
• Previous consistent statements by a witness
• Statements from a witness which are not in dispute.
• Formal admissions.

Question 8

Exception 1) Hearsay admissible by agreement

Answer 8

• If all parties in the case agree, any form of hearsay evidence may be admissible in evidence.

Question 9

Exception 2) Hearsay admissible under common law rule / preserved common law exception

Answer 9

S 118 (1):

a) Evidence of a confession or mixed statement made by D and;

b) Evidence admitted as part of the res gestate

– Res gestate = a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement.

Question 10

R v Andrews – Res Gestate

Answer 10

R v Andrews – hearsay evidence of a statement made by a fatally stabbed man after he was attacked, naming his two attackers, was properly admitted to evidence of the truth of the facts he had asserted under the re gestate principle.

Question 11

What must be considered for res gestate to apply?

Answer 11

Judge must ask: can the possibility of concoction or distortion be disregarded? (i.e., was the statement an instinctive reaction on part of the victim)?

Question 12

Exception 3) hearsay admissible in the interests of justice

Answer 12

• A ‘catch-all provision’.
• Allows the court to admit hearsay evidence that would not otherwise be admissible if it is in the interests of justice to do so.
• Gives court wide discretion to admit hearsay.

Court will consider the following factors:

(a) How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case

(b) What other evidence has been, or can be, given on the matter or evidence mentioned in (a);

(c) How important the matter or evidence is in the context of the case as a whole

(d) The circumstances in which the statement was made

(e) How reliable to maker of the statement appears

(f) How reliable the evidence of the making of the statement appears to be

(g) Whether oral evidence of the matter stated can be given and, if not, why not

(h) The amount of difficulty involved in challenging the statement; and

(i) The extent to which that difficulty would be likely to prejudice the party facing it.

In assessing these factors, court will have regard to D’s right to a fair trial enshrined in Article 6 ECHR.

R v Taylor – There is no requirement to reach a specific conclusion in relation to all the factors. Judge must consider those relevant.

Question 13

Exception 4) Statutory provisions: a) witness is missing / unavailable and b) business and other documents

Answer 13

A) Witness is missing / unavailable:

A statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if:

(a) Statement must be first-hand hearsay.

(b) The person who made the statement is identified to the court’s satisfaction

(c) Any of the following five conditions are satisfied:

1. The relevant person is dead;
2. The relevant person is unfit to be a witness because of his bodily or mental condition;
3. The relevant person is outside the UK, and it is not reasonably practicable to secure his attendance;
4. The relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken;
5. Through fear, the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (e.g., a written witness statement obtained by the police).

– The court can only give leave if it considers that the statement ought to be admitted in the interests of justice, having regard to the contents, to any risk of unfairness (in particular, how difficult it would be to challenge the statement) and the fact that a special measures direction could be made.

Question 14

Statutory provisions b) Business & other documents

Answer 14

A statement contained in a document is admissible as evidence of any matter stated if:

(a) Oral evidence given in the proceedings would be evidence of that matter,

(b) The requirements of subsection (2) are satisfied and

(c) The requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.

Question 15

For buisness & other documents what is subsection 2 and subsection 4 & 5?

Answer 15

Subsection (2)

• Document made in the course of trade/ business – The document (or the part containing the statement) must have been 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;
• Personal knowledge – The person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
• Information supplied in the course of business – Each person (if any) through whom the information was supplied from the relevant person to the person giving hearsay witness evidence, received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.
• This means that for s 117, both first-hand and multiple hearsay in certain documents are admissible in evidence.

Subsection 4

– If the statement was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, requirements of subsection (5) must be satisfied.

Subsection (5)

• Ay of the five conditions mentioned in subsection 2 is satisfied; or
• The relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

Question 16

Part 20 CRIM PR – When do the procedural rules for admitting hearsay apply?

Answer 16

Procedural rules for admitting hearsay evidence in Part 20 CrimPR only apply to cases where:

(a) It is in the interests of justice for the hearsay evidence to be admissible;

(b) The witness is unavailable to attend court;

(c) The evidence is multiple hearsay;

(d) Either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings.

Question 17

When do the procedural rules for admitting hearsay not apply?

Answer 17

1) common law exception

2) business documents

3) Hearsay admitted by agreement of all parties.

Question 18

What are the procedural rules for admitting hearsay?

Answer 18

1) NOTICE

• Should be served to all parties and the court as soon as reasonably practicable and no more than:

20 business days after D has pleaded not guilty in the Magistrates’ Court; or

10 business days after pleading not guilty in the Crown Court

(Extension can be agreed by parties).

Question 19

How should the notice to adduce hearsay evidence be prepared?

Answer 19

1. Identify the hearsay evidence
2. Set out the facts that party will rely on to show that the hearsay is admissible;
3. Explain how those facts will be proven if disputed by the other side;
4. Explain why the hearsay is admissible under the CJA; and
5. Attach ay documents/statements regarding the evidence that have not already been served.

Question 20

If the other party objects to the use of hearsay evidence, what must it do?

Answer 20

Apply to court & serve notice on the court and other parties setting out disputed facts

Should be done as is “reasonably practicable” and

At least 10 business days of receiving the first notice.

Question 21

What is confession evidence?

Answer 21

Definition = A confession is any statement, wholly or partly, adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

– Anything said by a defendant that constitutes an admission of any element of the offence with which they are subsequently charged, or that is in any way detrimental to their case, will satisfy the definition of a confession in s 82(1).

Question 22

Are confession evidence admissible?

Answer 22

A confession made by a defendant prior to trial will be admissible in evidence at trial to prove the truth of its contents (i.e., to prove the defendant’s guilt)

Question 23

What is a mixed statement and what is the general rule on it?

Answer 23

Mixed statement = a confession which also contains a statement which is favourable to the defendant.

– (e.g., a person accused of rape admits to the rape, however, says it was consensual)

• General rule = The whole statement will be admissible under s 76(1) (as an exception to the rule excluding hearsay evidence).

Question 24

What are the rules on a confession made by a defendant against a co-accused?

Answer 24

At trial:

• Any evidence given by a co-defendant at trial which implicates a defendant (including a confession made by the co-defendant) will be admissible in evidence against the defendant.

Pre-trial:

= a pre-trial confession made by one defendant which also implicates another defendant is admissible only against the defendant who makes the confession.

Question 25

Challenging admissibility of a confession evidence under S 76 PACE

Answer 25

A defendants who is alleged to have made a confession may challenge the admissibility of this confession at trial by arguing either:

(a) That they did not make the confession at all, and that the person to whom the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession; or

(b) That they did make the confession, but it should still not be admitted in evidence.

Question 26

Where D did make the confession, how can they argue it should not be admitted?

Answer 26

Evidence was obtained by:

1) Oppression or

2) Unreliability

Question 27

What is oppression for S 76 PACE?

Answer 27

• Oppression = includes torture, inhuman or degrading treatment, use or threat of violence (whether or not amounting to torture).

R v Fulling – Oppression = consists of the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, inferiors, etc, imposition of unreasonable of unjust burdens’.

– i.e., can include ‘bullying’ and hectoring’.

Question 28

When is a confession unreliable for S 76?

Answer 28

“Things said or done which are likely to render unreliable any confession”, including breaches of PACE (e.g., offering bail if they confess).

There must be a CAUSAL link between the thing said or done and the confession. (i.., where the defendant is an experienced criminal it will be harder to prove this causal link).

Question 29

Can a co-defendant rely on a confession made by another defendant?

Answer 29

S 76A (1) PACE 1984 = allows D to adduce evidence that a co-defendant has made a confession where both defendants plead not guilty and are tried jointly.

 A defendant would only want to do this if the co-defendant’s confession doesn’t also implicate that defendant.

S 76A(2) PACE = If co-defendant who made the confession says that his confession was made under oppression or circumstances rendering it unreliable court must exclude this confession.

 Court need only be satisfied on the balance of probabilities that the confession was not obtained either by oppression or in unreliable circumstances for the confession to be admissible when a co-defendant wants to rely on it as opposed to the prosecution.

Question 30

Where the confession is objected to under the S 76 PACE grounds, what burden does the prosecution have to satisfy ?

Answer 30

Prosecution must prove beyond reasonable doubt that the confession was not obtained by oppression or unreliability (for S 76 not to apply and confession to be adduced).

Question 31

Under S 76 if oppression or unreliability are satisfied, does the court have to exclude it?

Answer 31

YES.

Question 32

Can S 78 be relied on with confession evidence?

Answer 32

– S 78 may be relied on either when D admits making a confession but claims that the confession is untrue, or when D denies making the confession at all.

Question 33

S 78 where D accepts having made the confession …

Answer 33

Court only likely to exercise its discretion under s 78 to exclude evidence if these breaches are both significant and substantial.

R v Walsh – In most cases where right to legal advice was denied, court will exclude confession subsequently made as it would have an adverse effect on the fairness of the proceedings.

Question 34

S 78 where D denies making the confession…

Answer 34

A confession allegedly made by D when questioned by the police in an interview ‘outside’ the police station is likely to be excluded under s 78 if the police breached the provisions of Code C of PACE 1984 by:

(a) Failing to make an accurate record of D’s comments (Code C, Para 11.7(a) as the police would not then be able to substantiate that such comments were in fact made by D

(b) Failing to give D an opportunity to view the record of his comments and to sign this record as being accurate, or to dispute the accuracy of the record (Code C, para 11.11), as D would then be deprived of the opportunity to challenge the accuracy of the police record; or

(c) Failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station (Code C, para 11.4), as the whole point of putting the confession to the defendant at the start of the audibly recorded interview is toe ensure that the defendant has the opportunity to ‘deny on record’ what he is alleged to have said.

Question 35

What is the procedure for challenging the admissibility of confession evidence in the Crown Court?

Answer 35

Voir Dire is held (trial within a trial):

• Confession made inside the police station – If confession given by D in an interview at police station, interviewing officer gives evidence as to how the confession was obtained and the defendant then gives their version of events.
• Confession made outside the police station – the officer to whom the confession was allegedly made will give evidence, as will the defendant. Prosecuting and defence counsel will make submissions to the judge on whether or not the confession should be excluded based on the evidence.
• If judge rules inadmissible, jury hears nothing of the confession.
• If judge rules admissible, interviewing officer gives the jury evidence of the confession.

 D will still be able to attack the credibility of the confession (either when giving evidence or when the police officer is being questioned).

Question 36

What is the procedure for challenging the admissibility of confession evidence in the Magistrates’ court?

Answer 36

• If D seeks to exclude evidence of the confession under s 76(2) PACE, the magistrates also must hold a voir dire.
• If D only wishes to rely on s 78, there is no obligation to hold a voir dire. In this case, a challenge to the admissibility of the confession may be left either to the close of the prosecution case (if D’s solicitor wishes to make a submission of no case to answer), or at the end of the trial when D’s solicitor makes their closing speech.

Question 37

What is the effect of evidence obtained as a result of an inadmissible confession?

Answer 37

S 76(4) PACE = If a court excludes evidence of a confession made by D, this will not affect the admissibility in evidence of any facts discovered as a result of the confession.

– CPS unable to tell the court that these facts were discovered as a result of a confession made by D.