#15437 - Hearsay Evidence - BPC Criminal Evidence

Syllabus 14: Hearsay Evidence

Criminal Justice Act 2003, s.114

• (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

Despite regulation by statute, common law hearsay authorities remain valid insofar as they do not conflict with the statute

• e.g. s.115(3) on definition of ‘matter stated’ reverses hearsay aspects of HL’s decision in Kearley

Difference between common law and statutory regime

• Statutory regime provides for general ‘interests of justice’ admission of hearsay evidence; under common law position, hearsay rule applied mechanically to exclude evidence (including evidence of undoubtable probative value) from inclusion if they did not fit the specific exceptions

  • Greater scope for admitting hearsay: infringement of right to fair trial?

  • Strasbourg noted it isn’t, so long as it is properly applied

  • Nonetheless, domestic court recognised the care involved in employing statute to admit hearsay evidence: the more central the evidence, the more care required

  • Friel [2012] EWCA Crim 2871, per Gross LJ: hearsay evidence should never be ‘nodded through or adduced as a matter of routine’

  • Horncastle v UK [2015]: There should be a good reason for witness’ non-attendance, and that there should be sufficient safeguards to permit a proper assessment of the reliability of the evidence

Rationale of hearsay rule

• At common law: ‘the fear that juries might given undue weight to evidence the truth of which could not be tested by cross-examination, and possibly also the risk of an account becoming distorted as it was passed from one person to another’ (Sharp [1988] 1 All ER 65, per Lord Havers

• Under statute: in Horncastle [2010] 2 AC 373, Lord Phillips (representing SC) placed more emphasis on the effect on reliability

Admitted hearsay evidence are not treated as first-hand evidence

Where a person admits something, his own knowledge of which is based on hearsay, the admission does not prove the fact

• In a sense, the admission is ‘double hearsay’ along a chain of hearsay

s.114: a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if

s.115

• (2) A statement is 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.’

• (3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.

‘Statements’

• Statement may be hearsay notwithstanding that it was made on oath in other proceedings

• Out-of-court statements will not be hearsay if tendered as evidence of consistency rather than of a matter stated

• Use of previous inconsistent statement is not hearsay when trended merely to show inconsistency

• Purely mechanical generation of an image is not hearsay (made by a person), e.g. CCTV

• Whether computer generated information is hearsay depends on how the computer is used: if it is used to calculate, then no; if it is used to record information that is supplied by a person, then yes

‘Matter stated’

• Evidence that is sought to establish the truth of the matter

• E.g. where it is sought to establish the registration number of a car involved in an accident, an eye-witness A, who saw the accident, relates the number to B who has not. It is hearsay for B to tell the court what the number was for the purpose of proving the truth of A’s statement

s.115(3) is intended to reverse hearsay aspects of HL decision in Kearley [1992] 2 AC 228

• K charged with possession of controlled drug with intent to supple; amount of drug in K’s possession is not enough to warrant inference of such an intent

• P relied on evidence that, after K’s arrest, a number of telephone calls had been made to his home where callers asked for K by his nickname and sought to buy drugs

• HL held that hearsay rule precluded the use of the callers’ requests as implied assertions by them that K was a supplier

• Lord Ackner: just as a request for drugs continuing express statement that K was a supplier would clearly have been objectionable as hearsay, so a request containing an implied assertion to the same effect is also caught under the hearsay rule

• Under new regime, it would not have been hearsay: where the speaker believes that the hearer already knows the matter in question, it could not have been made with either of the hearsay purposes in mind, so the evidence cannot be hearsay

CA in Twist [2011] 3 All ER 1055 set a three-stage test for ascertaining hearsay

• Ascertain the matter sought to be proved; identify the purpose of the party in adducing a communication

• Whether there is a statement of that matter in the communication (only express statements allowed)

• Was it one of the purposes that the recipient, or any other person, should believe that matter or that a person should act upon the basis that it is as stated?

Eg of applications

• In general, adducing text messages to prove intent to supply is not caught by hearsay rule as it can’t be the case that the consumers are trying the dealer to believe that he is a dealer (he already knows he is)

• Lowe appeal: L was charged with twice raping his girlfriend following an argument; defence was consent and L claimed that the argument followed the intercourse. Messages from L to complainant were highly relevant, but L was not seeking to cause complainant to believe she had been raped: ‘if that is what the messages meant, they both knew that’

• Threats are not deemed hearsay if made to prove defence of duress

• Lies are not hearsay (you can't intend to make someone believe wha you know is not true)

• Thus, if both parties know of the matter, then it is not hearsay (since you can’t convince a person to believe what he already knows) aka ‘common understanding’

There may be difficulty in determining whether a statement is directed at another person

• E.g. diaries: are they for third parties’ read, or for author’s sole use?

  • Marine Fisheries Agency v Inter Fish Ltd [2009]: diary in this case was for third parties as it was more of a record with entries made by a third party

A statement may be used to prove the knowledge of the maker without infringing the hearsay rule

• Roberts v DPP [1994] Crim LR 926: where D denied knowing that certain premises were being used as a brothel, an advertisement he had sought to place, referring to the premises and containing a reference to ‘many stunning masseuses’, was admissible to show that he did know

Given the new statutory regime which makes it easier to admit hearsay evidence, important that jury be made aware of the potential weakness in hearsay evidence

Grant v The State [2007] 1 AC 1, Privy Council considered elements of a direction hearsay received under a similar statutory regime as CJA 2003

• Necessary to remind jury that the statement has not been verified on oath nor tested by XX

• Judge should point out the specific risks of relying on such evidence and invite the jury to scrutinise the evidence with particular care

• Jury's attention should be drawn to the context of all the evidence

• If there are discrepancies between statement and the evidence of other witnesses, jury's attention should be specifically drawn to them

Failure to give such directions will not necessarily render the trial unfair

CA in Williams [2014] EWCA Crim 1862 noted that the judge has a power to warn the jury about the dangers of hearsay evidence from the defence

• Fulford LJ: though the judge must be 'scrupulous to ensure that he does not shift the burden of proof away from the prosecution'

• Abiodun [2003] EWCA Crim 2167: a mild direction 'which simply reminded the jury of what in any event would have bene obvious to them, ie that the witness had not been cross-examined' was held not to have impinged on the fairness of proceedings

Overall aim is to ensure that, subject to necessary safeguards, relevant evidence should be admitted where that is in the interests of justice

Currently governed by provisions of Criminal Justice Act 2003

• Consistent with right to fair trial: Horncastle [2010] 2 AC 373

  • Grand Chamber accepts that, contrary to previous Strasbourg case law, CJA 2003 contains sufficient safeguards against risk of wrongful conviction: Al-Khawaja and Tahery v UK [2012] 54 EHRR 807; Horncaslte v UK [2015] 60 EHRR 1331

Four exceptions to rule against hearsay: s.114(1)(a) - (d) CJA 2003

• Statutory exceptions

  • Confined to specific exceptions provided in the statute, and thus does not render admissible evidence of an ID at a parade merely because it took place in accordance with statutory code of practice (Lynch [2008] 1 Cr App R 337)

  • s.116: Witness unavailable

  • s.117: business and other documents

• Common-law exceptions preserved under CJA

  • s.118: evidence of public...