#16773 - Hearsay - Criminal Procedure and Evidence

introduction

Basic idea: hearsay is a statement not made in oral evidence

Traditionally, hearsay rule was: ‘an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence’

but rule been re-defined by CJA 03 - intended to increase hearsay admissibility

Emphasised by Leveson J in Maher v DPP 06 - is undeniably relaxed but that doesn’t mean anything goes - must go through provisions carefully

Why exclude hearsay?

Lord Normand in Teper 52: not the best evidence, not given on oath, truthfulness can’t be cross examined & light which his demeanour would throw upon testimony lost

Lord Bridge in Blastland 86: also because system rooted in trial by jury - may find difficult ascribe right weight - fear get more probative weight than deserves

Previously was a distinction between hearsay & original evidence - if was admitted merely to prove statement made then was original (Subramaniam 56) - remants of this in s115(3) CJA 03

why was there reform?

Hearsay rule applied to prosecution & defence indiscriminately - concern that D unable bring just & relevant evidence e.g Sparks 64 indecent assault of child - told mum perpetrator black - inadmissible!

Even reliable evidence was excluded e.g Myers v DPP 65 - car chassis numbers - reliability accepted but couldn’t trace those who entered the numbers so excluded!

Document excluded - especially those relevant for business & police docs!

Courts sometimes saw hearsay where there wasn’t (Munday) e.g ‘negative hearsay’ - became confusing

Myers 65 HL said courts wouldn’t create new exceptions - job for Parliament

Rose LJ in Joyce & Joyce 05 said CJA 03 has ‘modernised the law’

hearsay under the CJA

New definition in ss 114 & 115: “a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if” (the various exceptions)

s.134 ‘oral evidence’ = inc. in writing/signs/by device if disabled etc

s.115(2) ‘statement’ = any representation of fact or opinion made by a person, by whatever means including rep made by sketch, photofit or other pictorial form

s.115(3) ‘matter stated’ = hearsay rule applies to matter if the purpose/1 of the purposes of the person making the statement appears to have been:

1. to cause another person to believe the matter

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

   Therefore, only hearsay when adducing statement to prove the facts contained in them

   s.115(3) largely preserves Kearley - LC intended get rid of the ‘implied assumptions’ exclusion

   Singh 06: telephone entries showing S had called at time of kidnap not matter stated thus not hearsay thus admissible

   Twist 11: said no longer need speak of ‘implied assertions’ & Mirfield praises this development but courts have shown uncertainty when applying new definition - dicta in Ischei 06/Olden 07 -unclear auto whether things a statement within 115(3) (but let in under 114(1)(d) anyway!)

   Note DPP v Leigh 10: absence of an entry neither statement nor matter stated

   ‘To cause another person to believe the matter’ (need not be sole/dominant purpose)

   R v N(K) 07: held diary entries not hearsay - said never intended be read by others so didn’t cause to believe - criticised decision

   Followed in Knight 07: aunt of V allowed testify as to contents of V’s diary which V had since destroyed - not hearsay because never intended anyone read - court said equivalent to witnessing event - (but surely this cant be reliable)

   Twist 11: mobile calls & text messages requesting drugs not hearsay because not trying convince alleged dealer he was a dealer! Also set out method:

1. identify what relevant fact/matter it tries to prove

3. ask if there’s a statement of that matter in the communication (if no, not hearsay)

4. if yes, ask about purposes - intend they believe that matter/act upon it as true? If yes, hearsay

   Recent application of ‘statement’ & ‘purpose’….

   Midmore 17: message was a relevant statement within 115(2) - photo of acid & caption ‘this one is the face melter’ - evidence of intention to use acid to cause V serious harm

   Said statement of intention can be a representation of fact

• but not hearsay as didn’t satisfy ‘purpose’ element - nothing in text to make recipient believe it would actually be used to melt a face/cause gf act on that basis

  also Khan, Mahmood & Kayla 13: P trying show Ds knew teacher - relied on secret recording - reference made to ‘our mate Khan’ - not hearsay as not intending make listener believe/act upon as if speaker knew Khan

  ‘to cause.. a machine to operated on the basis that the matter is as stated’

  Coventry Justices ex p Bullard 92: computer produced print-out to show poll tax arrears but couldn’t find witnesses who fed info - held inadmissible - would still be inadmissible under CJA 03

  Once determined evidence caught within hearsay provisions, next q is whether or not exceptions apply!

exceptions to the hearsay rule:

s.114(1) admissible if….

1. any provision of this Chapter makes it admissible,

2. any rule of law preserved by 118 makes it admissible

3. all parties agree to it being admissible, or

4. the court is satisfied it is in the interests of justice for it to be admissible

A) Any provision of this Chapter makes it admissible

1. s.116 ‘cases where a witness is unavailable’

• s.116(1) statement not made in oral evidence in proceedings admissible if…

1. oral evidence given in proceedings by the person who made the statement would be admissible as evidence of that matter (would be ordinarily admissible)

2. the person is identified to court’s satisfaction & (can’t be anonymous)

3. Any of the 5 conditions in ss2 is satisfied

• s.116(2):

1. The relevant person is dead

• e.g Musone dying prisoner said M stabbed him

4. The relevant person is unfit to be a witness because of bodily/mental condition

• Is about being unable attend court - mental construed quite broadly

• Setz-Dempsey 94 witness suffering amnesia allowed hearsay - shows not about competence

• Long 04 doc testified that W was fit testify

• R (Meredith) v Horwich Justices 07 must be adequate evidence of unfitness

• Saxon 16: vide-recording of police interview til child C unable attend trial - transcript of her cross-exam from prev trial

• Keet 07: sort of case 116 envisaged for - elderly C suffering from demential at time of trial - 116 important weapon

5. Relevant person is outside UK & not reasonably practicable ensure attendance

• Radak 99 attendance = present in court or live video link - evidence to commissioner abroad = hearsay

• R v C 06 key P witness in SA - originally agreed come then later on announced not attending nor video link - P tried put in evidence of note of phone call & transcript from SA court

• ‘Reasonably practicable’ must be judged on steps taken by party trying get witness

• Whether fair admit statement partially depends on steps taken/should have…

• Here hadn’t made enough effort so held inadmissible

• McEvroy 16 though German police couldn’t contact students, no evidence made to ascertain where they were at uni/what their home addresses were etc!

6. Relevant person cannot be found although such steps as are reasonably practicable have been taken to find him

• Adams 08 key P witness didn’t show up - 1 phone call & left message - not = all reasonably practicable steps - higher hurdle these days because more ways to contact!

7. Through fear the relevant person doesn’t give oral evidence & court gives leaves for statement to be given

• Davies (Anita) 07 Moses LJ - judges mustn’t accept assertions of fear too easily because v easy for witness avoid inconvenience/anxiety of trial by saying don’t want to come

• Doherty 07 courts need inquiries into reasons for fear - must balance subjective fear against objective fairness of trial

• e.g Boulton 07 V raped - witness protection - D tracked her down & threatened her/family - acceptable fear so evidence admitted!

• note witness’ statement can be to anyone (used to be just PO!)

• s.116(3): for purposes of ss(2)(e) ‘fear’ is to be widely construed e.g inc fear of death or injury of any other person or if financial loss

• Parkinson 04 stressed read it expansively but probs not here - merely felt uncomfortable attending because feared a policemen/

• s.116(4): leave may given under 2(e) if court considers statement ought be admitted in interests of justice, having regard to…

1. content of statement

2. any risk that its admission/exclusion will result in unfairness to any party to proceedings (esp how diff it will be to challenge the statement)

3. special measures that could be made under s.19 YJCEA 99

4. any other relevant circumstances

   note s.116(2)(e) & (3) obvs intended combat witness intimidation

   note when considering interests of justice, factors in 114(2)(a)-i) may be relevant (R v S)

   e.g Arnold 04 said frightened W’s statement must be considered against Art 6!

• s.116(5): any condition satisfied under ss(2) is to be treated as not satisfied if shown that these circumstances were caused

1. by the person in support of whose case it is sought to give the statement in evidence, or

5. by a person acting on his behalf , in order to prevent the relevant person giving oral evidence in the proceedings

• e.g Rowley witness made unavailable - D had sent threatening message - D couldn’t introduce W’s statement

• R v DT 09: whenever witness claims unavailable (through fear or otherwise) the party seeking rely on s116 needs either agreed facts or to produce admissible evidence

• Jones (kane) 15: conviction for ABH in domestic...