Class notes
Hearsay Evidence - Criminal Litigation (BPTC)
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Concise notes on hearsay evidence in points form.
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HearsayIntro
General exclusionary rule re hearsay evidence.
Two questions re hearsay, must be kept separate:
o (1) does the evidence fall within the definition of hearsay
evidence?
o (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.
o 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.
o 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:
o Right of accused to XX witnesses against him.
o The risk gets greater as the importance of the hearsay
evidence to the prosecution case increases.
o 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:
o (1) that hearsay evidence is recognised and treated as such;
, o (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:
(a) The UK statutory framework for admission of evidence of absent
witnesses is sufficient, properly applied, to provide for a fair
trial;
(b) 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.
(c) 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
o [[the more decisive/central the hearsay evidence is, the
greater the care required in admitting it]].
(d) Where the hearsay evidence is critical to the case the question
of whether there can be a fair trial depends on 3 principal
factors:
(i) Whether there is a ‘good reason’ to admit the evidence
pursuant to CJA 2003;
(ii) Whether the evidence can be shown to be reliable;
(iii) The extent to which counterbalancing measures have
been properly applied
o eg exclusionary discretion;
o eg proper directions to the jury in summing up.
Eg, Horncastle, hearsay evidence was decisive/critical, but was
admissible given that:
o There was other independent evidence support it;
o D had ample opportunity to challenge the victim’s credibility;
o 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 if:
(a) Statutory exceptions Any provision of this chapter or any other
statutory provision makes it admissible,
(b) Any rule of law preserved by s118 (common law exceptions)
makes it admissible;
Public information
Reputation as to character (and reputation or family
tradition).
Res gestae
(common law) Confessions & admissions by agents
Common enterprise
Expert evidence
(c) Agreement of all parties: 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.
The rules apply to Pros and Defence
And it covers not only statements of non-witnesses; but also past
statements made by a witness who is called to give oral evidence and
could thus be XX-ed about what he has said previously.
It applies to all statements, not simply to those made in anticipation of
the trial itself; and includes docs as well as oral statements.
o So the rule catches some evidence, such as records of routine
business dealings, that is intrinsically reliable, but this does not
prevent it being hearsay; the reliability or otherwise of the
evidence is relevant only to whether it may be received through an
exception to the rule.
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