#10412 - Hearsay Exceptions - BPC Criminal Litigation (formerly BPTC) 2024/2025

HEARSAY EXCEPTIONS

ADMISSIBILITY

• hearsay admissible ONLY if:

1. statutory provision makes it admissible (s114(1)(a))

2. rule of law preserved by s118 makes it admissible (s114(1)(b))

3. all parties to proceedings agree to it being admissible; (s114(1)(c))

4. in interests of justice for it to be admissible (s114(1)(d))

ADMISSIBILITY UNDER SECTION OF CJA 2003 (s114(1)(a))

MAKER UNAVAILABLE AS A W (s116 CJA)

• s116

  • only applies to first-hand hearsay

  • applies to documents, oral statements, statements by gesture

  • must prove each condition = pros BRD / defence balance of probs

  • hearsay admissible to prove truth of contents if statement-maker (SM):

    1. could've given admissible oral evidence of statement; AND

    2. was a competent W at time statement made (s123); AND

    3. can be ID'd to satisfaction of court (strict proof); AND

    4. any of following satisfied: (s116(2))

       1. dead

       2. physically / mentally unfit to be witness

          1. medical condition causing inability to remember when under stress IS enough (Setz-Dempsey)

          2. sudden unfitness pre-trial NOT enough (CPS v Uxbridge Mags)

          3. defence may XX doctor testifying to unfitness if proper grounds (Elliott)

       3. outside UK + at date of application NOT reasonably practicable to secure attendance, taking into account + calling evidence if facts cannot be agreed:

          1. importance of W's evidence

          2. expense and inconvenience, in relation to offence seriousness (Coughlan)

       4. statement-maker cannot be found after reasonably practicable steps to find him taken, taking into account:

          1. importance of W's evidence

          2. expense and inconvenience

          3. weight given to reasons for non-attendance (Castillo)

       5. fear (need leave)

          1. through fear, does not give / continue with oral evidence at all / in connection with subject matter of proceedings;

          2. AND court gives leave for statement to be given in evidence;

          3. AND statement ought to be admitted in the interests of justice, having regard to:

             • statement's contents

             • risk of unfairness to any party (in particular, how hard to challenge evidence if statement-maker does NOT give oral evidence)

             • whether a special measures direction for fearful witness etc given (YJCEA s19) - fear may be assuaged by e.g. video link, screen etc.

             • any other relevant circumstances

  • EVEN IF any of (a) - (e) above are satisfied in fact, treated as NOT satisfied if circumstances are caused by person in support of whose case sought to give statement in evidence OR anyone acting on his behalf in order to prevent statement-maker giving evidence (s116(5))

    • e.g. threaten statement-maker so flees UK

    • intimidation of W, so does not give evidence through fear

BUSINESS AND OTHER DOCUMENTS (s117 CJA)

• why are business records admissible?

  • prima facie reliable, as creators / compliers / receivers are disinterested (Horncastle)

• s117

  • only applies to documentary evidence:

    1. ordinary business documents; AND

    2. documents prepared for criminal proceedings OR during criminal investigations

  • hearsay admissible to prove truth of contents if:

1. oral evidence would be admissible as evidence of that matter; AND

2. following satisfied:

   1. document created OR received by a person in the course of a trade, business, profession etc. / as the holder of an unpaid office;

      1. this can be inferred (Foxley; O'Connor); AND

   2. supplier of information in the document can reasonably be supposed to have had personal knowledge of the matters dealt with; AND

   3. multiple hearsay: each person receiving the information did so in the course of a trade, business, profession etc. / as the holder of an unpaid office; AND

3. supplier / receiver / creator was competent at time supplied / received / created (CANNOT be assumed to be competent if unidentifiable) (s123)

---------AND-------

4. IF statement prepared for criminal proceedings / investigation grounds why supplier should NOT be called:

   1. any condition in s116(2) satisfied; OR

   2. relevant person CANNOT reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to time elapsed since supplying + all other circumstances)

   • court's discretion to exclude unreliable business documents (s117(7))

     • court may exclude if document's reliability is doubtful (contents, source, way supplied / created)

PREVIOUS CONSISTENT STATEMENTS (s119)

• general rule: inadmissible under rule against narrative AND rule against hearsay

• exceptions where admissible (provided SM was a competent W at time statement made):

  • to rebut allegation of recent fabrication

  • previous ID

  • previous complaint

  • res gestae

  • statements made on accusation

PREVIOUS INCONSISTENT STATEMENTS (s120)

• admissible (see SGS 4 for circumstances) provided SM was a competent W at time statement made

s114(1)(b) PRESERVED COMMON LAW RULES - s118 CJA

EVIDENCE OF PUBLIC INFORMATION

• any rule of law is preserved under which:

  1. published works dealing with matters of a public nature - admissible as evidence of the facts of a public nature stated in them e.g. dictionaries, scientific works, maps

  2. public documents - admissible as evidence of the facts stated if

     • concern a public matter

     • made by person under duty to inquire into matter + record findings

     • be retained so public might have access e.g. registers of marriage, university records

  3. records - admissible as evidence of facts stated in them

  4. evidence relating to a person's age or date or place of birth - may be given by a person without personal knowledge of the matter

• LARGE overlap with s117 CJA (business documents)

REPUTATION

• admissible evidence to prove matter concerned

• exception very rarely used

STATEMENTS FORMING PART OF THE RES GESTAE

• any rule of law admissible as evidence of any matter stated if:

  1. statement made by person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

     • rationale: spontaneity = guarantee against concoction

     • the test

       • can the possibility of concoction / distortion be disregarded?

         1. unusual, startling or dramatic event

         2. event dominated thoughts of SM

         3. statement instinctive, spontaneous, reaction to event

         4. when statement made, thoughts still dominated by event AND event still operative

         5. statement approximately contemporaneous

       • other factors: passage of time, malice

       • error: goes only to weight, unless special feature e.g. drunk

       • offence in question must generate statement (statement must be after dramatic event)

       • statement NOT used as substitute for available witness BUT can be used in addition (truth + consistency)

  2. statement contemporaneously accompanied an act which can properly be evaluated as evidence only if considered in conjunction with the statement (rare)

  3. statement relates to a contemporaneous physical sensation or mental state

     • contemporaneous bodily feelings

       • admissible to prove the feelings but NOT their cause i.e. the symptoms, NOT who caused them / a narrative

       • contemporaneous = NOT confined to actual moment when SM speaking, could be e.g. 'yesterday my cock hurt'

     • contemporaneous mental state

       • statements admissible to prove the cause of the mental state / as evidence that it existed

       • division: admissible as original evidence (non-hearsay) from which state of mind can be inferred / hearsay admissible under exception (modern authority favours former)

     • statements of present intention

       • must relate to contemporaneous state of mind / emotion

         • statement made 6 months before murder admissible (Moghal) BUT relevance of statement doubted by HL (Blastland)

         • unusual for hearsay to be admissible under this exception

CONFESSIONS + ADMISSIONS

Confessions (see SGS 6)

• preserves rules on confessions and mixed statements as an exception to the hearsay rule

• also applies to confessions by 3rd parties (not covered by s76 PACE)

Admissions by agents ( confession (s76) as not by accused person, nor adverse to SM)

• admission made by an agent of a D admissible as evidence of the matter stated:

  • agent must be authorised (for party seeking to rely to prove)

  • admissions made by barrister in court on behalf of his client assumed to be made with authority

  • admissions on PCMH forms will be excluded under s78

  • NOT a confession under s76 PACE as NOT made 'by an accused person', nor is it 'adverse…to the person who made it'

STATEMENTS IN FURTHERANCE OF COMMON ENTERPRISE

• admissible as truth of contents if:

  • in course of committing crime, SM makes statement that proves B was also committing same crime

-------AND-------

• there was a common criminal purpose / enterprise

  • need conspiracy / complicity

  • must be proved by independent evidence (not statement)

  • statement conditionally admitted subject to independent evidence

-------AND-------

• statement was made to pursue or further that purpose

  • criminal purpose must still be active when statement made

EXPERT EVIDENCE

• data expert bases report on must be proven by admissible evidence, unless other parties are notified and do not object

• admissible as evidence of contents

s114(1)(c) AGREEMENT

• definition

• court should be informed of agreement to admit hearsay at beginning of trial

• failure to oppose notice is treated by court as agreement

• does NOT override public interest immunity

s114(1)(d) INTERESTS OF JUSTICE

• the test (s114(2))

  • interests of justice =

    • prosecution evidence - the interest of D

    • defence evidence - the interest of arriving at the right conclusion (Marsh)

  • in deciding whether in interests of justice, court must have regard to following factors (and any others it considers relevant):

    1. probative value of statement (assuming it to be true) re: a matter in proceedings OR value for understanding other evidence in the case

    2. what other evidence...