Hearsay EV PDF

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Criminal Law- Hearsay Evidence...

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Topic 8 Hearsay Evidence ANSWERS: Below are OUTLINE answers-fuller reference in lecture/textbooks 1) Traditionalists and Reformer re: Hearsay state (4) Theme Traditionalists –Keep Reformer-Liberalise Hearsay Hearsay Rules 1.Cross Examination Protect the right to cross Hearsay is a question of weight examination only 2.Principle of Protect the principle of orality Distinguish Orality/Confrontation and confrontation -Totally unavailable witnesses -Available but absent witnesses -Business documents 3.Breach ECHR A.6 (3) (d) Automatic breach if the No automatic breach provided evidence sole or decisive counterbalance Judicial Directions 4. Vexation, Expense and Significant VED if heard and/or Significant VED from a Delay appealed restrictive rule if heard and/or appealed 5. Reasoning ECHR A.6 Juries don’t provide Reasoning can be overcome reasons by Judicial Direction and routes to verdict 2) i ii iii

Stage 1 Define hearsay (3 parts) Statement Out of court Prove truth of content

3) a)

Are the following hearsay? (If not why not?) (8) Witnesses in court who statesanswers to Who? What? Where? Live evidence Not Hearsay (H) Witnesses in a witness statement who states answers to Who? What? Where? Hearsay (H) Dead witness Normally H Witness in fear Normally H Business Computer Database record Depends Human entry H Computer automation Non H Voisin Spelling ‘Bladie Belgam’ Non H Circumstantial link Woodhouse Offer ‘Hand relief’ Non H “” Twist Requests For Drugs Texts Non H “”

b) c) d) e)

f) g) h)

(3)

4) Stage 2 General Rule: What is the general rule & section? Inadmissible s.114 (1)

(2)

5) Gateways List the two of statutory gateways & derivative s.114 (1) (a) e.g. s.116 U Unavailable Witnesses e.g. Dead, outside UK…, in fear e.g. s.117 B Business Documents e.g. Database entry

(4)

6) List one important common law gateway from s.114 (1) (b) & section (2) Common Law Res Gestae Live contemporaneous 7) What is the gateway from s.114 (1) (c)? Agreed evidence 1/3

(1)

8) What is the gateway from s.114 (1) (d) & what criteria? (2) Interests of Justice Criteria [s.114 (2)-Review all] 9) Stage 3 Judicial Discretion –Name those discretions…!  PACE 1984, s.78 & the Common Law exclusionary Discretion are preserved.  CJA 2003, s.123 Capability  CJA 2003, s.124 Credibility  CJA 2003, s.125 Stopping unconvincing cases  CJA 2003, s.126 General Discretion to exclude evidence 10) Chronology of the ECHR Journey. What does each say? A.6 (1) Right to a Fair Trial A.6 (2) Presumption of Innocence A.6 (3) (d) Right to cross examine witnesses 1st Case Al-Khawaja v United Kingdom (2009) 49 EHRR 1 No 1 ECHR H: Where convictions had been based to a sole or decisive degree on statements which D’s had no opportunity of challenging they would automatically be in breach of Articles 6 (1) & 6 (3) (d) 2nd Case R v Horncastle & Others [2009] UKSC 14 (7 panel SC) Supreme Court Held Section 2 (1) Human Rights Act 1998 requirement to take into account the ECtHR jurisprudence …However Al-Khawaja was not to be treated as determinative …. There would be rare occasions, such as the instant case, when the Supreme Court would have concerns as to whether a decision of the ECtHR sufficiently appreciated particular aspects of domestic process *Al-Khawaja & Tahery [2011] ECHR 2127Grand Chamber 3rd Case  UK Gov Referred to Grand Chamber ECHRH (Grand Chamber) 1. A move away from ‘sole or decisive’ towards Horncastle. 2. Confirms CJA 2003 regime if properly applied Is compatible with A.6 (3) (d) right to XX Para. [147] [Not automatic breach if sole or decisive evidence] Where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6. 3. IF regime is properly applied and in terms of statute and procedural safeguards Para. [147] [However Key protections are required] At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Including counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence. **Al-Khawaja’s **Tahery’s

Dead witness Witness in Fear

No Breach A.6 (1) and A. 6 (3) (d) Breach A.6 (1) and A. 6 (3) (d)

Case 4 *Riat [2012] EWCA Crim 1509 11/07/12 Hughes LJ CAH 1) The Court of Appeal issued general warnings: i) The obligation of the domestic courts is to follow Horncastle. ii) There is no overarching rule that a piece of evidence which is ‘sole or decisive’ is for that reason automatically inadmissible. iii) Nor is hearsay evidence admissible. The statute and Horncastle should be followed. 2/3

iv) There is nogeneral rule that hearsay evidence must be shown to be reliable before it can be admitted. v) However the court is looking at the extent of the risk of the unreliability and the extent to which that risk can be tested.

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