Supervision 7 – Hearsay

The rule excluding previous consistent statements

Witness was normally forbidden from invoking previous consistent statements to corroborate his testimony.
- Now subject to three common law exceptions, to which CJA 2003 adds.

Exception 1: Complaints by victims (CJA 2003, s.120(4), (7) and (8))

Complaint must relate to an offence that is the subject of the proceedings.
- Must be made by victims of offences actually charged in indictment.
Complaint must relate to ‘conduct which would, if proved, constitute the offence or part of the offence (s.120(7)(c)).
Before statement is adduced victim gives oral evidence in connection with its subject matter (s.120(7)(f)).
- Complaint must be ‘sufficiently consistent’ (ES).
Complaint does not necessarily have to be made to another person (M).
No time limit on when complaint has to be made (as amended by Coroners and Justice Act 2009).
Multiple complaints can be admitted (PK and TK).
Complaint cannot have been elicited by threat or a promise (s.120(8)).
Failure to give judicial direction will not always be fatal (Berry).
These rules only apply if complaints adduced by the Crown.

Exception 2: Rebutting suggestions of concoction or afterthought (CJA 2003, s.120(2)

Evidence may be adduced to show that witness has not concocted his testimony.
No statutory requirement that concoction must have been recent (Athwal).

Exception 3: Res gestae

Evidence may be admissible if the statement: (s.118, r.4)
- Was made by a person so emotionally overpowered at the time
- Accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
- Relates to a physical sensation or mental state.

Exception 4: Previous statements of a party identifying or describing a person, object or place (CJA 2003, s.120(5))

Witness needs to indicate that the statement is, to the best of his belief, true.
Description or identification needs to be put in relevant context (Chinn).

Exception 5: Supplementing deficiencies in the memory of witness (CJA 2003, s.139 and 120(6))

Refreshing of memory restricted to written documents (s.139(2)).
- Transcript from sound recording acceptable.
Opposing party can cross-examine witness on document (s.120(3)).
If witness regains no recollection of the event, can testify that statement is true (s.120(4) e.g. Chinn).
Witness must show that he could not reasonably have been expected to remember the events (s.120(6)).
- Imperfect recall sufficient.
Has to satisfy judge that memory would have been significantly better when statement was made (McAfee).
- Holistic analysis (Chinn).
Statement should not accompany jury in deliberation under s.122 unless strictly necessary (Hulme).

Statements made by the accused when first taxed with incriminating facts

Accused’s statement is admissible showing his reaction, but not the facts (Hamilton and Lewis).
If accused tenders statement with assistance of lawyer, court can refuse to admit it as evidence of accused’s reaction (e.g. Newsome).

The rule against hearsay

Worthern criticises statute as being too complex and uncertainty in the scope of the discretions.
- Suggests single rule tending towards exclusion or admission with list of factors to consider.
Birch and Hirst argue that legislation only solves Kearley (buy drugs – intent to supply) problem in relation to hearsay, not relevance. Also criticises decision in Leonard (quality of drugs – drug dealer).
- Argued that the evidence in Kearley was fundamentally irrelevant.
Spencer agrees with adopting Auld’s best evidence principle.

Implied assertions

An implied assertion was a piece of evidence that the law treated as though it was a direct statement upon whose truth a party intended to rely.
Such evidence not admitted in Kearley despite its patent usefulness.

What constitutes hearsay?

Hearsay is a statement not made in oral evidence (s.114(1)).
- A ‘statement’ is any representation of fact or opinion made by a person by whatever means (s.115(2)).
- Statement not given in oral proceedings containing evidence of a matter stated.
A statement is to be treated as hearsay only if ‘one of the purposes, of the person making the statement appears to the court to have been to cause another person to believe the matter’ (s.115(3)(a)).
- Leonard conflates the issue in the case and the purposes of making the statement. What is the prosecution seeking to rely on?
In Twist, court spelled out the method to be employed in resolving such questions (relating to the content of telephone calls and texts):
- Identify what relevant fact it is sought to prove;
- Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters be contained in the communication);
- If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.
Diaries will not generally be hearsay (N / Knight).
- But still admissible if relevant.
Hearsay provisions apply only to statements made by persons (s.115(3)(b)).
- Information from machines will be hearsay if person operating it causes machine to operate on basis that the matter is as stated.

Exceptions to the rule against hearsay (s.114)

S.114(1)(a) allows for statutory exceptions – confessions / s.116.
All parties agree to the statement being admissible (s.114(1)(c)).
- Can be inferred from lack of objection (Williams v VOSA).
When it is in the interests of justice to admit the statement (s.114(1)(d)).
- Factors to be taken into account provided in s.114(2)).
  - Judge does not have to consider each factor separately (Taylor).
  - Not considering these factors can be fatal (Z).
- Dispute as to appropriate scope, either as safety valve or wider use.
- Court needs to be careful before admitting Crown evidence if they seek to place heavy reliance on it (Y).
- Judge needs to hear both sides’ submissions (Ali and Hussain).
- Must not be used to circumvent s.116 (Tindle / Z / ED).
Ford / Mayers suggests that anonymous hearsay cannot be admitted.
- Spencer disagrees with this decision.

Cases in which a witness is unavailable (s.116)

Maker must have been admissible to give oral evidence.
Maker has been identified to the court’s satisfaction.
One of five conditions also needs to be made out. Relevant person is: (s.116(2))

Dead.
Unfit to be a witness because of his bodily or mental condition.
- Final decision is with the judge (Lang).
- Refers to ability to testify, not ability to show up in court (Setz-Dempsey).
- There must be actual evidence (Meredith).
Outside the UK and it is not practically reasonable to secure attendance.
- Evidence by live link acceptable (Radak).
- Need to enquire if witness has change of mind (C).
Cannot be found although reasonably practicable steps have been taken.
- Need to stay in contact with witness (Adams).
Too scared.

Evidence will not be admissible if cause of any condition above is the fault of the party seeking to have that person’s statement admitted (s.116(5)).

Statements of witnesses who do not testify through fear (s.116(2)(e))

Merely being ‘apprehensive’ of testifying insufficient (Parkinson).
Witnesses should have a ‘reasonable degree of fortitude' (Riat).
But s.116(3) states that ‘fear’ is to be widely construed.
Court must give leave before such evidence can be admitted (s.116(2)(e)).
- Must be in the ‘interests of justice’ to do so (s.116(4)).
  - Consider lack of cross-examination – but appropriate safeguards in s.124.
S.116(5) likely to have application to witnesses who are scared.

Business and other documents (s.117)

‘Document’ refers to ‘anything in which information of any description is recorded’ (s.134).
Conditions of admissibility laid out in s.117(2).
Cannot be admitted if such statements were ‘prepared for the purposes of pending or contemplated criminal proceedings’ (s.117(4)).
Relevant person cannot reasonably have been expected to have any recollection of the matters (s.117(5)(b)).
Court has discretion to exclude such documents (s.117(6)).
Documents created by persons not of full capacity also inadmissible (s.123(2)).

Common law categories of admissibility (s.118)

Public information (r.1)
Reputation as to character (r.2)
Reputation or family tradition (r.3)
Res gestae (r.4)
Confessions etc (r.5)
Admissions by agents (r.6)
- Normally solicitor authorised by D to make admission on his behalf.
Common enterprise (r.7)
- Where a number of persons are engaged in a common enterprise, the statements of any one of those persons is admissible against the others if uttered in furtherance of that common enterprise.
  - Statement was made in course of the conspiracy (Platten).
  - Must be other evidence to prove that other party was a party to the agreement (Beard and Smart).
- Conspiracy does not have to be charge, but there has to be an agreement to commit an offence together.
Expert evidence (r.8)
- Often used for possession of drugs with intent to supply cases, where police officers have experience (e.g. Hodges and Walker).

Res gestae (r.4)

Reported words that are so closely connected as to form part of the transaction are treated as admissible.
Rule 4 states that ‘any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if –

The statement was made by a person so emotionally overpowered by an event that the...

#15003 - Hearsay - Criminal Procedure and Evidence

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