Hearsay Notes

Hearsay

Intro

• General exclusionary rule re hearsay evidence.

• Two questions re hearsay, must be kept separate:

  • (1) does the evidence fall within the definition of hearsay evidence?

  • (2) If ‘yes’ it is prima facie inadmissible does it fall within one of the exceptions to the general exclusionary rule?

History & rationale

• Concept of ‘hearsay’: evidence which is given second hand, either: related by a person to whom the absent witness has spoken; or contained in a written statement of the absent witness; or given in the form of a document or record created by him; or otherwise.

• the common law excluded statements other than statements made in oral evidence given in court from being admitted as evidence of the truth of their contents.

  • Main reason: the maker of the out-of-court statement was not available to be XXed so the quality of the evidence could not be tested.

  • EG: in D’s trial for the murder of V, A gives evidence that B told him that D killed V. Only A is in court to be XXed. Cannot test the credibility of B’s statement. B may have had a motive for wanting to get D into trouble. He may be passing on what someone else told him. He may simple be mistaken. What he said may have been misunderstood.

• Common law developed a number of exceptions to the general rule, where it appeared that hearsay evidence could properly be relied on:

• But there was no general ‘interests of justice’ rule whereby hearsay evidence could be admitted until s114(1)(d) CJA 2003. So some pre-2003 case law saw appellate courts taking a broad view of the rules to avoid an unfair outcome.

Hearsay, loss of right to XX & fair trial

• Because hearsay evidence cannot be XXed in court there is an obvious risk of unfairness to D where it is admitted:

  • Right of accused to XX witnesses against him.

  • The risk gets greater as the importance of the hearsay evidence to the prosecution case increases.

  • ECHR Art 6 may be engaged.

• Originally, ECHR, Al-Khawaja said: where a conviction is based solely or decisively on hearsay statements (where accused had no opportunity to XX) the rights of defence are too restricted, incompatible with Art 6. But ECHR now changed mind (below).

• Courts must be vigilant that:

  • (1) that hearsay evidence is recognised and treated as such;

  • (2) that it is received in evidence only where the appropriate safeguards are in place.

• UK Supreme Court (& ECHR), re effects of hearsay on Art 6 fairness of trials:

1. The UK statutory framework for admission of evidence of absent witnesses is sufficient, properly applied, to provide for a fair trial;

2. The court must always be satisfied that (a) there is a sufficient basis for the absence of the witness & (b) that a fair trial will be possible.

3. It will be harder for court to be satisfied that a fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence against the accused

   • [[the more decisive/central the hearsay evidence is, the greater the care required in admitting it]].

4. Where the hearsay evidence is critical to the case the question of whether there can be a fair trial depends on 3 principal factors:

   1. Whether there is a ‘good reason’ to admit the evidence pursuant to CJA 2003;

   2. Whether the evidence can be shown to be reliable;

   3. The extent to which counterbalancing measures have been properly applied

      • eg exclusionary discretion;

      • eg proper directions to the jury in summing up.

• Eg, Horncastle, hearsay evidence was decisive/critical, but was admissible given that:

  • There was other independent evidence support it;

  • D had ample opportunity to challenge the victim’s credibility;

  • Judge gave a full & clear direction about disadvantages.

• CF, Ibrahim, not admissible: could not be shown to be reliable; supporting evidence did not overcome doubts re reliability; and the evidence should have been either excluded under s78 PACE or case stopped under s125.

• The SC and ECHR accept that CJA 2003 contains sufficient safeguards to provide for a fair trial (Art 6): provides sufficient safeguards against risk of wrongful conviction. SC held: CJA 2003 sets out a rigorous statutory scheme whereby the credibility & reliability of hearsay evidence can be tested; includes an overriding safeguard to stop a case based on unreliable evidence (s125). And ECHR now agrees with this.

• Is not necessary to show that decisive evidence is reliable before it can be fairly admitted. It is for jury to assess the reliability of hearsay evidence.

• Judge must ensure that the evidence is capable of being safely held to be reliable, given: (a) its strengths & weaknesses, (b) the tools available to the jury for testing it; and (c) its importance to the case as a whole.

• Where the hearsay evidence is critical/decisive, is unsupported, and likely to be unreliable it should not be admitted.

• Bad character of an absent witness is not necessarily a reason for exclusion, provided that the evidence available to jury is such that they can properly assess the risk of his having lied.

• The fact that vulnerable witnesses are involved does not absolve courts of their responsibility to ensure that there is no unfairness when allowing witness statements to be read.

• Where the prosecution has delayed proceedings and thus a witness is unavailable to testify the court may exclude the witness’s statements on the basis that the prosecution should have proceeded when the witness was available.

• The CJA 2003 applies to trial and other hearings to which the strict rules of evidence apply; and also proceedings under the Crim Procedure (Insanity) Act 1964 s4A, which mirrors the fact-finding process at a criminal trial .

CJA 2003

• General rule = hearsay evidence is inadmissible

• S114 CJA 2003: is admissible IF, but only if, it falls within one of the exceptions in s114(1).

• S114(1), Admissibility of hearsay evidence: In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only...

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