Hearsay PDF

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BPP notes on Hearsay...

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LAW OF EVIDENCE HEARSAY What is Hearsay - “Gary told me that Ibrahim had told him he would kill him if he ever saw him in the area again.” - If used as evidence to prove the truth it is hearsay; - This is an introductory definition; the statutory definition is more important. Cautions of hearsay - Traditionally, hearsay viewed as less reliable; - Difficulties of cross-examination; - Possibilities of concoction; - Juries not able to cope. Criticisms - Hearsay need not be less reliable - Difficulties of cross-examination can be offset by an appropriate direction - For that reason, juries can cope - The rule can lead to unjust results History - Arguments against the rule hold sway historically - But development of exceptions piecemeal - Sparks v R [1964] o Could mothers’ statement of what the girl said be admitted o Would have helped D is statement admitted as it exculpated him - Myers v. DPP [1965] AC 1001 After Myers - Basically, Parliament gets in on the piecemeal act; - Then Law Commission Paper no. 245; - Culminates in the Criminal Justice Act 2003. -

CJA 2003 S.114 (when hearsay admissible); S.115 (definition of hearsay); S.116 (unavailable witnesses, massively important); S.117 (business documents); S.118 (preservation of common law exceptions); S.121 (multiple hearsay); S.125 (power to stop the case); s.136 (discretion to exclude); PACE s.78;

Approach 1. Is the evidence hearsay? 2. If it is, is it admissible hearsay?

LAW OF EVIDENCE 1. Is it Hearsay? - Starting point is s.114(1) and s.115 - It is hearsay if; o It is a statement made other than orally in the proceedings; and o If it is tendered to prove the truth of the matter stated -

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Statements are not always tendered to prove the truth of a matter stated o May be tendered to prove that the maker said the actual words; o To prove that the maker speaks in a particular way o As circumstantial evidence of other relevant facts o To prove the maker’s state of mind o To prove the maker’s physical state In all these scenarios, the statement is not hearsay.

Hearsay: The R v Twist approach 1. Identify the matter we seek to prove; 2. Identify whether there is a statement of that matter in the communication; if not, then the communication isn’t hearsay. 3. If yes, identify whether it is one of the purposes of the maker to cause the recipient or any other person to believe the matter stated to be true, or to act upon the basis that it was true; if yes, then it is hearsay. 2. a) b) c) d)

If it is hearsay; is it admissible hearsay? The starting point is s.114(1); (only 4 ways in which hearsay can be admitted) Statutory admissibility; Preservation of common law exceptions If the parties agree; If it’s in the interests of justice to admit the statement.

Unavailability of witness - ECHR art.6(3D) the right to confront your accusers or cross-examine them; “Everyone charged with a criminal offence has the following minimum rights … (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” - So if a witness is unavailable, there’s a problem (prima facie conflict) - Yet, S116 makes provision for the statement of an identified unavailable witness to be admitted - Has to be identified - Ford [2010] EWCA Crim 2250. Al-Khawaja v. UK - 2 appeals to Strasbourg court - Defendants convicted pretty much based on evidence of unavailable witnesses, one had died and the other was in fear; - Strasbourg Court (in 2009) appears to hold; where the sole or decisive basis for the conviction is hearsay evidence of an unavailable witness, that is not allowed under art.6.

LAW OF EVIDENCE

Horncastle [2011] 2 AC 373 - 1. GBH case – witness who gave evidence died before trial - Evidence was admitted under S116(2)(a) - Evidence was not the sole basis, but it was extremely decisive - 2. Kidnap case – evidence admitted under S116(2)(e) - feared to attend - Evidence in this case was sole and decisive - The decisive evidence is hearsay evidence from unavailable witnesses; - Court of Appeal and Supreme Court refuse to follow Strasbourg. Reasoning (CoA) - Legislative intent - Strasbourg jurisprudence inconsistent; not implemented very well re hearsay - Practical difficulties - Counterbalancing factors The Supreme Court Para 14; The following are the conclusions that I have reached for reasons that I shall develop: 1. Long before 1953 when the Convention came into force the common law had, by the hearsay rule, addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure. 2. Parliament has since enacted exceptions to the hearsay rule that are required in the interests of justice. Those exceptions are not subject to the sole or decisive rule. The regime enacted by Parliament contains safeguards that render the sole or *433 decisive rule unnecessary. 3. The continental procedure had not addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure. 4. The Strasbourg court has recognised that exceptions to article 6(3)(d) are required in the interests of justice. 5. The manner in which the Strasbourg court has approved those exceptions has resulted in a jurisprudence that lacks clarity. 6. The sole or decisive rule has been introduced into the Strasbourg jurisprudence without discussion of the principle underlying it or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to the continental and common law jurisdictions. 7. Although English law does not include the sole or decisive rule it would, in almost all cases, have reached the same result in those cases where the Strasbourg court has invoked the rule. 8. The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. 9. Al-Khawaja does not establish that it is necessary to apply the sole or decisive rule in this jurisdiction. After Horncastle - Al-Khawaja v. UK 2012 o Strasbourg Court rethinks its decision, although there are some powerful dissents - Riat [2013] 2 WLR 2592 o Horncastle must be followed, any differences between that and Strasbourg may be overstated, hearsay is by default not admissible

LAW OF EVIDENCE

Unavailability because of the Defendant - Rowley [2013] 1 WLr 895 (a reason, not the reason) - It seems likely that Taylors absence was motivated by fear of D and more general possibility of fear of giving evidence - Defence rely on the fact of inability to face up to the prospect of giving evidence Certain common law exceptions - S.118 - S.118(4) res gestae o Events which are so overwhelming as to discount any risk of concoction - Andrews [1987] AC 281 o Victim stabbed and told police who arrived immediately who had done it - Saunders [2012] EWCA Crim 1185 o Main evidence against Saunders is hearsay – 2 pieces o 1st – Told wife over the phone at the time of stabbing Saunders had done it Interests of Justice - S.114(2) is very important to this exception; - The risk of a blank cheque is obvious as section is drafted very wide - L [2009] 1 WLR 626 - Horsnell [2012] EWCA Crim 227 o In both these cases the hearsay statements made by wives were admitted o Circumventing S80 PACE – compellability of spouses -

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Z [2009] 1 Cr App r 34; o 2 witnesses – ex-wife and woman 1 o Ex-wife died and W1 did not want to attend court Saunders [2012] EWCA Crim 1185. o 2nd – witness refuses to give evidence based on what she told a friend (afraid of Saunders) o Gives false evidence on the contrary to the event through fear o S114 can be used here to circumvent this issue

Multiple Hearsay - S.121; - Maher v. DPP [2006] EWHC 1271 (Admin) - S.124 discrediting a witness - S.125 stop case if hearsay is so unreliable - S.126 power to exclude hearsay Admissibility summary 1. Which gateway? 2. Credibility (Court considers allowing evidence to discredit the maker of the hearsay statement); 3. Interests of justice tests

LAW OF EVIDENCE 4. (either s.114(2) or s.116(4); 5. Stop the case? 6. Exclude the evidence?...