#10396 - Hearsay Rule - BPC Criminal Litigation (formerly BPTC) 2024/2025

HEARSAY

WHY IS HEARSAY EVIDENCE A PROBLEM?

• increase risk of fraud

• no opportunity to assess demeanour of speaker

• cannot be tested by XX

• danger of mistake arising from repetition (Chinese whispers)

• problems in assessing weight (especially for jury)

ADMISSIBILITY

• hearsay admissible ONLY if:

1. statutory provision makes it admissible

2. rule of law preserved by s118 makes it admissible

3. all parties to proceedings agree to it being admissible; or

4. in interests of justice for it to be admissible

DEFINTITION (s114, s115 CJA 2003)

1. a statement

• = any form that enables a representation of fact to be made: oral, written, gesture, conduct

2. NOT made in oral evidence in the proceedings

• statements made on oath in other proceedings = hearsay

3. admitted as evidence of any matter stated i.e. to prove truth of its contents (by party seeking to admit)

• it is 'ordinarily essential that evidence of the truth of a matter to be given in person by a witness who speaks from his own observation or knowledge' (Horncastle)

• = hearsay evidence of matter stated (though may fall within exception)

1. 'produce of Spain' marked on imported bags (evidence of country of origin)

2. information indelibly stamped into goods

3. information stamped onto document e.g. date

4. car registration, records complied in manufacture of car = hearsay of engine number

5. person relating own DOB and place of birth

6. statement by a police officer that X is a 'known heroin user', if got info from others

   1. purpose of maker is to cause:

      1. another person to:

      • believe the matter stated; OR

      • act on the basis that the matter is as stated

      2. a machine to act on the basis that the matter is as stated (s115)

Hearsay, machines and computers

• NOT hearsay:

1. a machine which merely aids perception (Taylor v CC Cheshire)

2. statements produced automatically by machines / computers (Castle v Cross)

3. a mechanically generated representation that depends for its accuracy on information supplied (directly or indirectly) by a person + proof that information accurate

• = hearsay:

1. if there has been human intervention (ex p Bullard)

2. a mechanically generated representation that depends for its accuracy on information supplied (directly or indirectly) by a person without proof that information accurate

Alternative test for hearsay (Twist)

1. ascertain matter sought to be proved + purpose

2. if matter relevant, is there a statement of that matter in the communication?

   1. if N, NOT hearsay

3. if communication states matter was it one of the purposes that the recipient / any other person should believe that matter OR that a person should act upon the basis that it is as stated

   1. if Y = hearsay

   2. if N, NOT hearsay

Weight of hearsay when admitted

• = second-hand evidence = second best (less weight)

ADMISSIONS BASED ON HEARSAY

• if person admits something, his own knowledge of which is based on hearsay, admission does NOT prove the fact

  • admission as to country of origin of goods derived from markings on goods themselves

  • that goods bought were stolen, based on fact seller told buyer they were

NEGATIVE HEARSAY

• CANNOT use out of court statement to prove positive fact

• CAN use hearsay to prove negative fact

  • if statement NOT contained in formal record but expect it to be, can use to prove negative (R v Patel, R v Shone)

  • e.g. person's name NOT on list of persons entitled to enter country, absence of name can be used to prove they are NOT entitled to enter

THE RULE IN OPERATION

Evidence which is caught by the hearsay rule

• third-party out of court admissions / defence evidence

  • Sparks v R - white D + V too young to give evidence. V's mother wished to give evidence V had said 'it was a coloured boy' = hearsay, used to prove ID of D)

  • R v Callan - D sought to give evidence at trial that someone not present at court had admitted committing the offence = hearsay, used to prove ID of D

Original evidence - evidence which is NOT caught by the hearsay rule

• statement tendered for reason other than to establish truth of contents

  • paper bearing business calculations admissible as circumstantial evidence to show D's involvement in drug supply

• evidence of impact of words

  • Subramaniam v Public Prosecutor - D charged with possession of ammunition + raised defence of duress (said threatened by terrorists + sought to give evidence of what they said to him) NOT hearsay - words of threats being used to prove that D in fear

  • Davis - evidence of what solicitor said to D prior to interview

• evidence of state of mind

  • evidence of consciousness of guilt may be shown by a demonstrably false statement

• implied assertions of truth

  • R v Ratten - emergency services received call from woman shouting 'get me the police' in a distressed tone'. later found shot. husband claimed shot her accidentally when cleaning gun. NOT hearsay - implied assertion that wife was under attack / adducing to show state of mind

• common understanding between parties (i.e. does NOT cause to believe / act on)

  • purpose of senders of texts to drug dealer NOT to induce him to act upon implication that he was a...