Hearsay Exceptions Notes

HEARSAY EXCEPTIONS

ADMISSIBILITY

• hearsay admissible ONLY if:

1. statutory provision makes it admissible (s114(1)(a))

2. rule of law preserved by s118 makes it admissible (s114(1)(b))

3. all parties to proceedings agree to it being admissible; (s114(1)(c))

4. in interests of justice for it to be admissible (s114(1)(d))

ADMISSIBILITY UNDER SECTION OF CJA 2003 (s114(1)(a))

MAKER UNAVAILABLE AS A W (s116 CJA)

• s116

  • only applies to first-hand hearsay

  • applies to documents, oral statements, statements by gesture

  • must prove each condition = pros BRD / defence balance of probs

  • hearsay admissible to prove truth of contents if statement-maker (SM):

    1. could've given admissible oral evidence of statement; AND

    2. was a competent W at time statement made (s123); AND

    3. can be ID'd to satisfaction of court (strict proof); AND

    4. any of following satisfied: (s116(2))

       1. dead

       2. physically / mentally unfit to be witness

          1. medical condition causing inability to remember when under stress IS enough (Setz-Dempsey)

          2. sudden unfitness pre-trial NOT enough (CPS v Uxbridge Mags)

          3. defence may XX doctor testifying to unfitness if proper grounds (Elliott)

       3. outside UK + at date of application NOT reasonably practicable to secure attendance, taking into account + calling evidence if facts cannot be agreed:

          1. importance of W's evidence

          2. expense and inconvenience, in relation to offence seriousness (Coughlan)

       4. statement-maker cannot be found after reasonably practicable steps to find him taken, taking into account:

          1. importance of W's evidence

          2. expense and inconvenience

          3. weight given to reasons for non-attendance (Castillo)

       5. fear (need leave)

          1. through fear, does not give / continue with oral evidence at all / in connection with subject matter of proceedings;

          2. AND court gives leave for statement to be given in evidence;

          3. AND statement ought to be admitted in the interests of justice, having regard to:

             • statement's contents

             • risk of unfairness to any party (in particular, how hard to challenge evidence if statement-maker does NOT give oral evidence)

             • whether a special measures direction for fearful witness etc given (YJCEA s19) - fear may be assuaged by e.g. video link, screen etc.

             • any other relevant circumstances

  • EVEN IF any of (a) - (e) above are satisfied in fact, treated as NOT satisfied if circumstances are caused by person in support of whose case sought to give statement in evidence OR anyone acting on his behalf in order to prevent statement-maker giving evidence (s116(5))

    • e.g. threaten statement-maker so flees UK

    • intimidation of W, so does not give evidence through fear

BUSINESS AND OTHER DOCUMENTS (s117 CJA)

• why are business records admissible?

  • prima facie reliable, as creators / compliers / receivers are disinterested (Horncastle)

• s117

  • only applies to documentary evidence:

    1. ordinary business documents; AND

    2. documents prepared for criminal proceedings OR during criminal investigations

  • hearsay admissible to prove truth of contents if:

1. oral evidence would be admissible as evidence of that matter; AND

2. following satisfied:

   1. document created OR received by a person in the course of a trade, business, profession etc. / as the holder of an unpaid office;

      1. this can be inferred (Foxley; O'Connor); AND

   2. supplier of information in the document can reasonably be supposed to have had personal knowledge of the matters dealt with; AND

   3. multiple hearsay: each person receiving the information did so in the course of a trade, business, profession etc. / as the holder of an unpaid office; AND

3. supplier / receiver / creator was competent at time supplied / received / created (CANNOT be assumed to be competent if unidentifiable) (s123)

---------AND-------

4. IF statement prepared for criminal proceedings / investigation grounds why supplier should NOT be called:

   1. any condition in s116(2) satisfied; OR

   2. relevant person CANNOT reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to time elapsed since supplying + all other circumstances)

   • court's discretion to exclude unreliable business documents (s117(7))

     • court may exclude if document's reliability is doubtful (contents, source, way supplied / created)

PREVIOUS CONSISTENT STATEMENTS (s119)

• general rule: inadmissible under rule against narrative AND rule against hearsay

• exceptions where admissible (provided SM was a competent W at time statement made):

  • to rebut allegation of recent fabrication

  • previous ID

  • previous complaint

  • res gestae

  • statements made on accusation

PREVIOUS INCONSISTENT STATEMENTS (s120)

• admissible (see SGS 4 for circumstances) provided SM was a competent W at time statement made

s114(1)(b) PRESERVED COMMON LAW RULES - s118 CJA

EVIDENCE OF PUBLIC INFORMATION

• any rule of law is preserved under which:

  1. published works dealing with matters of a public nature - admissible as evidence of the facts of a public nature stated in them e.g. dictionaries, scientific works, maps

  2. public documents - admissible as evidence of the facts stated if

     • concern a public matter

     • made by person under duty to inquire into matter + record findings

     • be retained so public might have access e.g. registers of marriage, university records

  3. records - admissible as evidence of facts stated in them

  4. evidence relating to a person's age or date or place of birth - may be given by a person without personal knowledge of the matter

• LARGE overlap with s117 CJA (business documents)

REPUTATION

• admissible evidence to prove matter concerned

• exception very rarely used

STATEMENTS FORMING PART OF THE RES GESTAE

• any rule of law admissible as evidence of any matter stated if:

  1. statement made by person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

     • rationale: spontaneity = guarantee against concoction

     • the test

       • can the possibility of concoction / distortion be disregarded?

         1. unusual, startling or dramatic event

         2. event dominated thoughts of SM

         3. statement instinctive, ...

Buy the full version of these notes or essay plans and more in our BPTC Criminal Litigation Notes.