#13788 - Hearsay Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Hearsay Evidence I

What is hearsay?

1. Statement of fact or opinion in any form (includes pictures!);

2. Not given in oral evidence;

3. Relied on as proof of the matter stated;

   1. ‘The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially,’ i.e., as establishing some fact narrated by the words.’

4. One of the purposes of the maker of the statement was to cause another to believe the facts stated or cause another person or a machine to operate on the basis that the facts are as stated.

So, "It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when iti s proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."

What is original evidence?

• Subramaniam v CPS - D was charged with assisting a terrorist. He pleaded a defence of duress claiming the terrorists had threatened to kill him if he did not follow through with their requests. To do this, he wanted to testify about these conversations he had with the terrorists. At trial, these conversations were said to be hearsay and excluded. On appeal, the PC held these statements were not hearsay:
  
  "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.
  
  The Council found that since the statements were not used in order to prove one of the issues of law, rather it was in order to prove whether the defendant was reasonable in his actions, the hearsay rule should not apply. The truth of the statements made by the terrorists were not significant, it is merely the fact that they said something that would create a reasonable apprehension in the defendant.

• Examples:

  • D denies being involved as he was on holiday in India at the time. Indian High Commission confirm no visa was issued to D.

    • If relying on the absence of records, no "statement made", so can't be hearsay. So call Commissioner to give evidence that if a visa was issued, it'd be in the database, so it's absence demonstrates no visa was given.

    • If trying to prove there WAS a visa in the database. The database would include a matter stated, so it would be hearsay.

  • Police Officer orally repeats in his evidence what a Witness said who is unavailable and wasn't able to draft a witness statement. This is because the statements are adduced to prove that the words were said; the truth of the words is irrelevant.

  • Police Officer finds electricity bills linking D to the drug den. D confirms he lives a 17 Smith Road for 6 months, and denies any involvement with the building. These are admissible because the matter stated in the document is "You owe XYZ". - It's not adduced to prove whether D does actually owe this, merely to prove the circumstantial link between D and the building.

Confessions & Hearsay

• If D says "I live here, but this is nothing to do with me.". The fact D is admitting to living in a drug den is "adverse" to him, so it would be treated as a confession. These are always admissible.

• Things said when D is cautioned is always admissible. The purpose to which it is put changes depending upon the nature of what is said.

  • Purely Inculpatory - It can be admitted as truth of its contents.

  • Mixed Statement - For example, "I killed him, but in self-defence." You can't unpick the statement into its constituent parts, so it is admissible as truth of its contents.

  • Purely Exculpatory - It can only be admitted as truth of those words being said, and nothing more.

Hearsay & Documents

• If W records the number plate of the car, and the times and dates it was sitting outside her house, the evidence is hearsay. It is adduced to prove the car was there at the time, the diary records that fact, and as it's not a private diary, it's likely to persuade someone to believe that's true. So how to adduce? Refresh W's memory:

  • You live at 17 Smith Street? Yes

  • You've been observing the street outside your property? Yes

  • Tell us in detail what you observed? The car sitting outside my property.

  • Can you tell us specific times and dates? I can't remember.

  • What did you do when you saw that? I recorded it in my diary.

  • Does your diary record your recollection significantly better than you can now? Yes.

ADMISSIBLE as "memory refresher" as proof of its contents per s139 CJA 2003.

Hearsay & Machines

• If drugs are found at D's house, and they are tested in a machine. The machine creates a print out. This print out is not a "statement made" by a person. So turn to s129 CJA 2003.

  • If the machine required information to be inputted, the output is not admissible unless the information inputted is proved to be accurate.

  • If the machine required stuff to be inputted (substances etc), the output is admissible because its accuracy depends simply on the law of physics, as it's just a machine performing a function. No issues of unreliability.

What is real evidence?

• Where a computer or other mechanical or electronic device is used to perform a calculation or other function, the resulting information provided is not hearsay, it is real evidence.

• But, the prosecution would need to adduce evidence from the human who fed in the information, operated the device and interpreted/read the output.

The 3-fold "Twist" Test

1. What is the matter sought to prove? ("Matter Stated")

2. Is there a statement of that matter in the communication?

3. Was one of the purposes of the maker to:

   1. Cause a person to believe what they said was true;

   2. Cause a machine/person to rely on the basis it is true.

EG: A calls B and states "I want to buy 50 worth of cocaine"

1. What are we seeking to prove?

   1. We're adducing the phone call to prove B does in fact supply cocaine;

2. Is there a statement of that matter in the communication?

   1. No, there is no explicit mention of "You are a supplier of cocaine, and I want to buy..."

   2. Whilst this is an implied assertion, it is not explicit, thus not hearsay.

3. What was the purpose of making the statement?

   1. It was not to convince B he was a drug dealer. B knows that. It is implied. But this is more reliable, because maker isn't trying to convince the recipient of the matter sought to be proved at trial! So these fall outside the hearsay definition.

   2. BUT, if A says, "I have already sold 50 of the stuff and need more", it is his purpose to induce the recipient to believe that fact, and thus this would be hearsay of the fact he supplied drugs.

Admission Gateways for Hearsay

In order to admit hearsay under the 2003 Act, s. 114(1) provides four distinct ways:

1. invoking a statutory rule within the CJA 2003;

2. invoking a preserved common law exception (see s.118);

3. seeking the agreement of all parties to the use of hearsay;

4. persuading the court that the evidence should be received in the interests of justice (s114(1)(d).

In Riat, the Court of Appeal considered five conjoined appeals on the issue of hearsay. Lord Justice Hughes gave the following steps for considering whether or not to admit hearsay evidence under the 2003 Act. The statutory framework provided for hearsay evidence by the CJA 2003 can usefully be considered in these six successive steps.

1. Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence ( s 116–118 )?

2. What material is there which can help to test or assess the hearsay ( s 124 )?

3. Is there a specific ‘interests of justice’ test at the admissibility stage?

4. If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice ( s 114(1)(d) )?

5. Even if prima facie admissible, ought the evidence to be ruled inadmissible ( s 78 PACE and/or s 126 CJA )?

6. If the evidence is admitted, then should the case subsequently be stopped under section 125?

Example of hearsay: Non-compellable Wife's statement could be admitted as hearsay against her spouse. But obvious paradox of statutory excusing wife giving evidence, then putting her statement before the jury.

The Seven Gateways