Hearsay Evidence - law notes PDF

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HEARSAY EVIDENCE Definition  

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A ‘hearsay statement’ is defined in S114(1) of the CJA 2003 as ‘a statement, not made in oral evidence, that is relied on as evidence of a matter in it’ A ‘statement’ is defined in S155(2) a ‘representation of fact or opinion made by a person by whatever means and it includes a representation made in a sketch, photofit, or other pictorial form’ The purpose, or one of the purposes, of the person making the statement must appear to the court to have been to cause another person to believe that the matter, or to cause another person to act on the basis that the matter, is as stated (S115(3)).

General rule on admissibility 

Hearsay is generally not admissible in criminal proceedings however, it will be admissible if it falls within one of the exceptions to the general rule contained in S114(1)(a)-(d) CJA 2003: a) By statutory provision b) Any rule of law preserved by S118 makes it admissible c) 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

Hearsay admissible under a statutory provision – S114(1)(a) Hearsay evidence is admissible as a result of a statutory provision in the following situations: 

Cases where a witness is unavailable – S116(2) CJA 2003 – See flowchart on pg 381 a) The relevant person is dead b) The relevant person is unfit to be a witness because of his bodily or medical condition c) The relevant person is outside the UK and it is not reasonably practicable for him to attend d) The relevant person cannot be found, although steps as it is reasonably practicable to take to find him have been taken e) Through fear of safety and the court gives leave to use the statement Must be first hand evidence. Cannot be multiple hearsay.

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Business and other documents – S117 CJA 2003 -See flowchart on pg 382 o A statement contained in a document is admissible as evidence if:  The document must have been created or received by a person in the course of a trade, business, professional or other occupation  The person who supplied the information contained in the statement had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with;

Each person through whom the information was supplied received the information in the course of a trade, business, profession or other occupation. S177 will commonly be used to ensure the admissibility in evidence of business records. If a statement was prepared for the ‘purposes of pending or contemplated criminal proceedings, or for a criminal investigation (S117(4)) requirements of S117(5) must be satisfied. The requirements of S177(5) will be satisfied if:  Any of the five conditions mentioned in S116(2) are satisfied or  The relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circs) The court retains discretionary power to make a direction that a statement shall not be admitted under S117. The court may make any such direction if it is satisfied that the statements reliability as evidence for the purpose for which it is tenders is doubtful in view of  Its contents  The source of information contained in it  The way in which or the circumstances in which the information was supplied or received;  The way in which or the circumstances in which the document concerned was created or received. Can be multiple hearsay (S121(a) CJA) 

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Additional requirements for admissibility of multiple hearsay evidence 

If the evidence is ‘multiple hearsay’ additional requirements must be met for the evidence to be admissible: o Only admissible if it provides under the relevant section (i..e allowed under S177 but not S116) o All the parties agree to the statement being admitted and o The court is satisfied that the value of the evidence is so high that the interests of justice require the statement to be admissible.

Challenging the credibility of hearsay evidence 

If hearsay evidence is admitted, the maker of the statement will not be able to be cross-examined by the other party in an attempt to undermine that persons credibility as a witness. In such a case, S124 CJA 2003 permit the following evidence to be admissible: o Any evidence which would have been admissible as relevant to his credibility as witness and o With permission of the court, any evidence which could have been put to him in cross-examination as relevant to his credibility as a witness.

Stopping the case where evidence is unconvincing 

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In a Crown Court trial, if judge is satisfied after the close of the prosecution that: o The case against the defendant is wholly or partly based on hearsay evidence and o The hearsay evidence is so unconvincing that his conviction of the offence would unsafe The judge must direct the jury to acquit the defendant or discharge the jury (S125).

General discretion to exclude evidence 

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S126(1) gives the court general discretion to refuse to admit a statement that constitutes hearsay evidence ‘if the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence’ This is in addition to the general power to exclude evidence contained in S78 PACE

CONFESSION EVIDENCE – Flowchart on 392 Definition 

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“Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise” S82(1) PACE Anything said by a defendant that constitutes an admission of any element of the offence or that is in any way detrimental to his case will satisfy the definition.

Admissibility of confession evidence  

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A confession made by a defendant prior to his trial will be admissible in evidence at trial by virtue of S76(1) PACE. A confession made before trial which is repeated in evidence will be hearsay evidence. Such a confession is admissible by virtue of S114(1)(a) which provides that hearsay evidence will be admissible if it is made admissible by virtue of statutory provision. Confession evidence is made admissible by S76(1) PACE. A confession which also includes a statement which is favourable to the defendant will be a ‘mixed statement’. The whole statement will be admissible under S76(1)

Challenging the admissibility of a confession: S76 

A defendant who is alleged to have made a confession may challenge the admissibility of this confession at his trial by arguing either:

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A. That he did not make the confession at all and that the person to whom he made the alleged confession was either mistaken as to what he heard or has fabricated evidence of the confession or B. That he did make the confession but only for reasons other than the fact that he was actually guilty of having committed the offence. In this instance, the defendant will say that the confession is untrue. If the defendant accepts that he made a confession but denies that the confession is true, he will challenge the admissibility of the confession under S76(2) of PACE: o The confession was obtained either: (a) By oppression of the person who made it or (b) In consequence of anything said or done which was likely to render unreliable any confession which might be made by him in consequence thereof. If a defendant argues that the confession was obtained in the manner or circumstances detailed in A or B, he court must not allow that confession to be used (even if the court believes the confession to be true) unless the prosecution can prove beyond a reasonable doubt that the confession was not obtained by oppression or in circumstances which render it unreliable.

Oppression  

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S76(8) PACE stated that “oppression” includes torture, inhuman or degrading treatment and the use of threat of violence. R v Fulling [1987] the court said that it consisted of “the exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects and the imposition of unreasonable or unjust burdens” An example of oppression is in R v Davidson [1998] where the defendant confessed after being unlawfully held at the police station, unlawfully denied access to legal advice and questioned about an offence for which he had not been arrested.

Unreliability 

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Something must have been said or done which caused the defendant to make a confession for reasons other than the fact that he actually committed the offence and wanted to admit his guilty. The thing said or done will usually involve an alleged breach of Code C. Examples of the types of breach of Code C which may lead to a confession being excluded on grounds of unreliability...