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CRIMINAL LITIGATION 6(b) - Evidence III - Hearsay II

Terms in this set (73)

Q: what is the purpose of Part II Chapter 2 CJA 2003?
To retain the concept of the hearsay rule, while ensuring that relevant hearsay evidence is admitted where in the interests of justice.
Q: to what does the CJA 2003 apply?
The CJA 2003 applies to trials and other hearings to which the strict rules of evidence apply.
Q: what are the four categories of exception to the rule against hearsay evidence?
See s.114(1) CJA 2003:
(a) STATUTORY exceptions (including but not limited to exceptions under the CJA itself);

(b) COMMON-LAW exceptions (as preserved in s.118);

(c) AGREEMENT of all parties;

(d) Cases where it is 'IN THE INTERESTS OF JUSTICE' to admit hearsay.
Q: if hearsay evidence fits one of the gateways for admissibility under s.114 CJA 2003, will it be admitted?
Not necessarily. Bringing hearsay within (a)-(d) is only the first step in the process.

The other statutory safeguards are v important (Horncastle) - esp:
- s.124 CJA 2003: testing of credibility where maker of hearsay statement does not attend to testify;
- s.125 CJA 2003: court's power to stop a case where evidence unconvincing;
- s.126 CJA 2003: discretion to exclude hearsay evidence in addition to existing discretion at common law and under s.78 PACE.
- All P evidence is further subject to s.78 PACE.
Q: what must the judge do regarding the jury when the judge permits the parties to adduce hearsay evidence?
The judge must direct the jury as to the dangers of relying on it (Vasco [2012] CA).
Q: what must the judge do before speeches, when the judge permits the parties to adduce hearsay evidence?
The judge should give detail of their ruling, so that counsel may tailor their speeches to the ruling, and, where appropriate, make submissions in respect of the proposed hearsay direction in light of the ruling.
Q: what is the test that the court must apply in considering whether to admit hearsay evidence?
The court should follow the following steps:

(a) Is there a statutory gateway permitting admission of the hearsay evidence (s.114(a)-(c))?

(b) What material is there which can help to test/assess the hearsay (s.124 CJA)?

(c) Is there a specific 'interests of justice' test at the admissibility stage?

(d) If there is no other justification/gateway, should the evidence nvthless be considered for admission on the grounds that admission is in the interests of justice (s.114(1)(d) CJA)?

(e) Even if the evidence is prima facie admissible, should the evidence be ruled inadmissible (under s.78 PACE and/or s.126 CJA)?

(f) If the evidence is admitted, should the case subsequently be stopped under s.125 CJA?
Q: what are the key STATUTORY exceptions allowing the parties to adduce hearsay evidence?
- UNAVAILABLE WITNESSES (s.116 CJA 2003)
- BUSINESS & OTHER DOCUMENTS (s.117 CJA 2003)
Q: when is hearsay evidence admissible under s.116 CJA 2003 on the basis of unavailable witnesses?
See s.116(1) CJA 2003 - hearsay may be evidence of any matter stated IF:
(a) Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;
(b) The person who made the statement (the relevant person) is identified to the court's satisfaction; AND
(c) Any one of the conditions in s.116(2) CJA 2003 is satisfied.

See s.116(2) CJA 2003 - the five conditions are:
(a) The relevant person is DEAD;
(b) The relevant person is UNFIT to be a W b/c of his bodily or mental condition;
(c) The relevant person is OUTSIDE THE UK and it is NOT reasonably practicable to secure his attendance;
(d) The relevant person CANNOT BE FOUND although such steps as are reasonably practicable to find him have been taken;
(e) Through FEAR, the relevant person does not give (or continue to give) oral evidence in the proceedings, either at all or in connection w/ the subject matter of the statement, and the court gives leave for the statement to be given in evidence.
Q: what counts as 'fear' for the purposes of s.116(2)(e) CJA 2003?
See s.116(3) CJA 2003:
'Fear' is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.
Q: when will the court grant leave to admit the hearsay statement of a witness who is unavailable through fear under s.116(2)(e) CJA 2003?
s.116(4) CJA 2003:
Only if the court considers that the statement ought to be admitted in the interests of justice.
Q: in deciding whether to grant leave to admit the hearsay statement of a witness who is unavailable through fear under s.116(2)(e) CJA 2003, what must the court consider?
See s.116(4) CJA 2003 - the court will have regard to:
(a) The statement's CONTENTS;

(b) Any RISK that its admission or exclusion will result in UNFAIRNESS to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence);

(c) in appropriate cases, the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (SPECIAL MEASURES for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person; AND

(d) ANY OTHER RELEVANT CIRCS.
Q: when will one of the five conditions under s.116(2) CJA 2003 be considered NOT to be satisfied?
See s.116(5) CJA 2003 - IF the circs are CAUSED:
(a) By the person in support of whose case it is sought to give the statement in evidence; OR
(b) By a person acting on his behalf,
in order to PREVENT the relevant person giving oral evidence in the proceedings (whether at all or in connection w/ the subject matter of the statement).
Q: what kind of hearsay does s.116 CJA 2003 apply to?
ONLY first-hand hearsay (ct s.117 and s.121).
Q: what kind of person's statement does s.116 CJA 2003 apply to?
The person who made the hearsay statement must be identifiable (s.116(1)(b)) - s.116 cannot be applied to anonymous Ws.
Q: what kind of evidence can s.116 CJA 2003 apply to?
Usually statements in written docs, BUT may also apply to oral hearsay and statements by conduct.
Q: what should the court do when the witness is dead (s.116(2)(a) CJA 2003)?
The court may move straight to consideration of whether principles of trial fairness permit W's statement to be adduced.
Q: what should the court do when the witness is unfit (s.116(2)(b) CJA 2003)?
The court must investigate further.
Q: when will the court consider that the witness is unfit under s.116(2)(b) CJA 2003?
The provision is satisfied if W could be brought to court but there would be no point in doing so
Q: is stress sufficient for unfitness to testify under s.116(2)(b) CJA 2003?
NO.

BUT the judge may take account of likely future conseqs - e.g. if testifying is likely to cause W to commit suicide.
Q: can the court find that a defendant is unfit to testify, even though the defendant is fit to stand trial?
Yes - but this will be rare and exceptional (e.g. Hamberger - chronic angina.)
Q: what is the key question for the purpose of s.116(2)(c)-(d) CJA 2003?
The key Q is what it is reasonable to expect a party to do to secure W's attendance.
Q: what counts as 'attendance' for the purpose of s.116(2)(c)-(d) CJA 2003?
Attendance may be in person OR by video link.
Q: what counts as 'reasonable steps' for a W who is lost?
NOT ONLY looking for him if he disappears BUT ALSO staying in touch w/ him to avoid him disappearing.
Q: what must be proven in relation to fear for the purposes of s.116(2)(e) CJA 2003?
Causal link btwn fear and failure/refusal to give evidence.
Q: is it necessary for the purpose of s.116(2)(e) CJA 2003 that the witness' fear be attributable to the defendant?
NO. It may be e.g. fear of a co-D.
Q: what are the jury entitled to know in cases involving fearful witnesses under s.116(2)(e) CJA 2003?
The jury usually cannot be told the reasons for W's absence.
Q: what general principles regarding s.116(2)(e) CJA 2003 did the court emphasise in Horncastle [2009] CA?
- All possible efforts should be made to get W to court - intimidation will only flourish if citizens are discouraged from doing their duty.

- Ws should not be assured in advance that their evidence will be read.
Q: when is hearsay evidence admissible under s.117 CJA 2003?
See s.117(1) CJA 2003:
A document is admissible as evidence of any matter stated IF:
(a) oral evidence given in the proceedings would be admissible as evidence of that matter;
(b) the requirements of s.117(2) are satisfied; AND
(c) if s.117(4) requires, the requirements of s.117(5) are satisfied.

s.117(2) CJA 2003: satisfied IF:
(a) The doc or the part containing the statement was created or received by a person IN THE COURSE OF TRADE, BUSINESS, PROFESSION OR OTHER OCCUPATION, or as the HOLDER OF PAID/UNPAID OFFICE;
(b) The person who supplied the info in the statement (the relevant person) had or may reasonably be supposed to have had PERSONAL KNOWLEDGE of the matters dealt w/; [this may be the same person as (a) - s.117(3)) AND
(c) Each person (if any) through whom the information was supplied from the relevant person to the person in (a) received the information IN THE COURSE OF TRADE, BUSINESS, PROFESSION OR OTHER OCCUPATION, or as the HOLDER OF PAID/UNPAID OFFICE.

s.117(4) CJA 2003 - additional requirements must be satisfied IF the statement:
(a) was prepared for the purposes of pending/contemplated criminal proceedings or a criminal investigation; BUT
(b) was NOT obtained pursuant to a request under s.7 Crime (International Cooperation) Act 2003 or an under para 6 Sch 13 CJA 1988.

s.117(5) CJA 2003 - satisfied IF:
(a) any of the five conditions under s.116(2) re: unavailable Ws is satisfied; OR
(b) The relevant person cannot reasonably be expected to have RECOLLECTION of the matters dealt w/ in the statement (having regard to lapse of time since he supplied the info and all other circs).
Q: what further restriction applies to admissibility under s.117 CJA 2003?
See s.117(6)-(7) CJA 2003:
The court may make a direction that the statement is NOT admissible under s.117 if it is satisfied that the statement's RELIABILITY as evidence for the purpose for which it is tendered in view of:
(a) its CONTENTS:
(b) the SOURCE of the info w/n;
(c) the way in which/circs in which the INFO was SUPPLIED/RECEIVED;
(d) the way in which/circs in which the DOC concerned was CREATED/RECEIVED.
Q: what is the rationale for the admissibility of business documents under s.117 CJA 2003?
Business docs are admissible b/c they are compiled by disinterested people. In the ordinary course of events likely to be accurate, so they are prima facie reliable (Horncastle)
Q: what are examples of some non-business docs admissible under s.117 CJA 2003?
- Hospital records
- Court statements
- Police Custody records
Q: to what kinds of hearsay evidence does s.117 CJA 2003 apply?
ONLY documentary evidence.

The compiler cannot supplement gaps w/ oral hearsay testimony, and an entry in a record cannot be proved by calling s/o who has checked the record.
Q: if the conditions for admissibility of hearsay evidence under the CJA 2003 are satisfied, what must still be considered?
The court's residual discretion to exclude P evidence under s.78 PACE 1984.
Q: what is the basis of arguments from fairness to exclude hearsay evidence?
- The loss of the important right to cross-examine a W;
- The right of D to examine or have examined Ws against him under Article 6(3)(d) ECHR.
Q: is the CJA 2003 scheme for the admissibility of hearsay evidence compliant with the ECHR?
Yes - ECtHR has affirmed the sufficiency of the UK scheme (Horncastle v UK (2015)).
Q: where untested hearsay evidence is 'critical' to the case, what will the question of whether the trial is fair depend on?
(1) Is there a good reason to admit the evidence (i.e. compliance w/ CJA 2003);
(2) Can the evidence be shown to be reliable;
(3) To what extent do counterbalancing measures exist and have they been properly applied (i.e. the statutory safeguards under CJA 2003 plus common-law safeguards)?
Q: when is the right to challenge hearsay evidence especially important?
- When it is CENTRAL - the more central the hearsay evidence is, the greater the care required (Friel [2012] CA per Gross LJ)

- When it is v WEAK - where the weakness of the evidence is acknowledged, as w/ identification or recognition evidence. Where such evidence is hearsay and is the principal element in P's case, courts should be v reluctant to receive it (Neill v North Antrim MC [1992] HL)
Q: what factors must the court have regard to in deciding whether it is in the interests of justice for hearsay evidence to be admissible under s.114(1)(d) CJA 2003?
s.114(2) CJA 2003:
The court must have regard to:

(a) How much PROBATIVE VALUE the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how VALUABLE it is for the UNDERSTANDING OF OTHER EVIDENCE in the case;

(b) what OTHER EVIDENCE has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how IMPORTANT the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the CIRCUMSTANCES in which the statement was made;

(e) how RELIABLE the MAKER of the statement appears to be;

(f) how RELIABLE the EVIDENCE OF THE MAKING of the statement appears to be;

(g) whether ORAL EVIDENCE of the matter stated can be given and, if not, WHY it cannot;

(h) the amount of DIFFICULTY involved in CHALLENGING the statement;

(i) the extent to which that DIFFICULTY would be likely to PREJUDICE the party facing it.
Q: does the CJA 2003 require a separate conclusion on each factor under s.114(2)?
No - just an exercise of judgement in light of all factors.
Q: can a hearing on admissibility under s.114(1)(d) CJA 2003 take account of material presented to the judge on the ex parte application which was not available to the defence?
No (Ali [2008] CA).
Q: what was the original purpose of s.114(1)(d) CJA 2003?
It was conceived by the Law Commission as a 'safety valve' for admission of o/w inadmissible evidence in exceptional circs only.
Q: what is an example of a lacuna which s.114(1)(d) is commonly used to fill?
Where a witness only knows the name of a suspect because they were told it by someone else.
Q: what are the key common law exceptions to the rule against hearsay evidence preserved by s.118 CJA 2003?
- Public information
- Reputation
- Res gestae
- Confessions and admissiosn
- Statements in furtherance of common enterprise
- Expert evidence
Q: what is the content of the 'public information' exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
This preserves any rule of law under which in criminal proceedings:

(a) PUBLISHED WORKS dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,

(b) PUBLIC DOCUMENTS (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them,

(c) RECORDS (such as the records of certain courts, treaties, Crown grants, pardons and commissions) are admissible as evidence of facts stated in them; OR

(d) 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.
Q: what is the content of the 'reputation' exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
This applies to:
- The use of evidence of REPUTATION to prove CHARACTER;
- The use of reputation/family tradition to prove or disprove PEDIGREE, MARRIAGE, any public or general RIGHT, or the EXISTENCE OF ANY PERSON OR THING.

Such evidence is rarely resorted to.
Q: what is the content of the 'res gestae' exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
This applies to any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated IF:

(a) the statement was made by a person so EMOTIONALLY OVERPOWERED by an event that the possibility of concoction or distortion can be disregarded;

(b) the statement accompanied an act which can be properly evaluated as evidence ONLY IF CONSIDERED IN CONJUNCTION with the statement; or

(c) the statement relates to a PHYSICAL SENSATION or a MENTAL STATE (such as intention or emotion).

The most common statements received as evidence under res gestae are those in (a) and (c).
Q: what is the key requirement for the admissibility of res gestae evidence (per Lord Ackner) ?
Proof of the 'close and intimate connection' btwn exciting events and making of statement (Andrews [1987] HL per Lord Ackner).
Q: what is the test for res gestae admissibility (Ratten v R per Lord Wilberforce)?
"If the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received."
Q: what is the test for res gestae admissibility (Andrews per Lord Ackner)
(1) The primary Q is whether the possibility of concoction or distortion can be disregarded.

(2) To answer this Q, the judge must consider the circs in which the statement was made, to satisfy h/s that the event was so unusual/startling/dramatic as to DOMINATE V's thoughts, such that V's utterance was an INSTINCTIVE reaction to it, w/ no opportunity for reasoned reflection. If so, the judge is entitled to conclude that there is no possibility of concoction or distortion, provided the statement was approximately contemporaneous w/ the event.

(3) For the statement to be sufficiently 'SPONTANEOUS' it must be so closely associated w/ the event exciting it that it can be fairly stated that the mind of the person making it was DOMINATED by the event - i.e. the trigger mechanism was still operative.

(4) The judge must be satisfied, having regard to the special feature of MALICE, that there is NO possibility of concoction or distortion to the advantage of the maker orthe disadvantage of D.

(5) As to the possibility of error - if only the ordinary fallibility of human recollection is relied on, this is a matter of weight not admissibility, and thus a Q for the jury. However, special features going to error - e.g. drunkenness, or defective eyesight - will be a Q for the judge.
Q: what must the judge make clear to the jury regarding res gestae evidence (Andrews per Lord Ackner)?
The judge must make clear that:
(a) it is for the jury to decide WHAT was said and to be sure that the Ws were NOT MISTAKEN in what they believed had been said to them;

(b) 'they must be satisfied that the declarant did not CONCOCT OR DISTORT to his advantage or to the disadvantage of D the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will' (at p. 302);

(c) where there are SPECIAL FEATURES that bear on the possibility of mistake, the jury's attention must be invited to those matters.
Q: what is the content of the confessions exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings is preserved (see s.76/s.76A PACE).
Q: what is the content of the admissions exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
This applies to any rule of law under which in criminal proceedings:

(a) an admission made by an AGENT of D is admissible against D as evidence of any matter stated; OR

(b) a statement made by a PERSON TO WHOM D REFERS A PERSON FOR INFORMATION is admissible against D as evidence of any matter stated.
Q: what is the content of the furtherance of common enterprise exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
This applies to any rule of law under which in criminal proceedings a statement made by a party to a COMMON ENTERPRISE is admissible against another party to the enterprise as evidence of any matter stated.
Q: where is the rule regarding furtherance of common enterprise applicable?
This is esp assoc w/ conspiracy charges - but not confined to them. Cf e.g.:
- Suicide pact to take poison - evidence of purchase of poison by V in furtherance of common purpose was admissible against D (Jessop (1877)).
- Joint enterprise to evade a ban on drug importation (Jones [1997]).
Q: what must be distinguished from the rules regarding the admissibility of acts/statements made by one co-conspirator in the absence of another?
The corporate identification principle.

See A Ltd, X and Y [2016] CA - the director was beyond the court's jurisdiction - his acts were w/n the scope of the identification principle - BUT would NOT have been admissible under s.118(1).
Q: what is the content of the expert evidence exception to the rule against hearsay evidence preserved by s.118 CJA 2003?
This applies to any rule of law under which in criminal proceedings an expert witness may draw on the BODY OF EXPERTISE relevant to his field.

The point here is that taking account of information from the work of others is essential to expert evidence. Where an expert relies on the existence/non-existence of some fact which is basic to the Q on which the expert is asked to give an opinion, THAT fact must be proved by admissible evidence (Abadom [1983]).
Q: when does expert evidence cease to be drawing on a body of expertise and therefore become subject to the hearsay rule (Myers v R [2015] per Lord Hughes)
"the test of whether evidence based upon hearsay material can be given is better seen to be whether it ceases to be the expounding of general study (whether by W or others) and becomes the assertion of a particular fact in issue in the case."
Q: what further route is there for the admissibility of information relating to expert evidence?
See s.127 CJA 2003:
Evidence may be given of PREPARATORY FINDINGS on which the expert's opinion is based w/o needing to call those who made the findings as Ws.
Q: when is 'multiple hearsay' admissible?
See s.121(1) CJA 2003:
A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless:

(a) either of the statements is admissible under ss.117, 119 or 120;

(b) all parties to the proceedings so AGREE; OR

(c) the court is satisfied that the VALUE of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
Q: what rules apply regarding the credibility of a person who does not give oral evidence in connection with the subject matter of their statement?
See s.124(1) CJA 2003:
This applies where (a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, AND (b) the maker of the statement does not give oral evidence in connection w/ the subject-matter of the statement.

In that case, see s.124(2) CJA 2003:

(a) any evidence which WOULD (if he had given such evidence) have been admissible as relevant to the person's CREDIBILITY as a W IS so admissible;

(b) evidence MAY w/ the court's leave be given of any matter which (if he had given such evidence) could have been put to him in CROSS-EXAMINATION as relevant to his CREDIBILITY as a W (but of which evidence could not have been adduced by the cross-examining party);

(c) evidence tending to prove that he made (at whatever time) any other statement INCONSISTENT w/ the statement admitted as evidence is admissible to show that he contradicted h/s.
Q: what may the court do if as a result of evidence admitted under s.124 CJA 2003 an allegation is made against the maker of a statement?
See s.124(3) CJA 2003:
The court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.
Q: who counts as the maker of the statement under s.124 where the statement is in a document admitted as evidence under s.117 CJA 2003?
See s.124(4) CJA 2003:
Each person who, in order for the statement to be admissible, must have supplied or received the information concerned or created or received the document or part concerned.
Q: what is the content of the court's power to refuse to admit hearsay evidence under s.126 CJA 2003?
See s.126(1) CJA 2003:
The court may refuse to admit a statement as evidence of a matter stated IF:

(a) the statement was made otherwise than in oral evidence in the proceedings; AND

(b) 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.
Q: what does nothing in the hearsay chapter of the CJA 2003 prejudice?
s.126(2) CJA 2003:
(a) any power to exclude evidence under s.78 PACE 1984; AND
(b) any other power to exclude evidence at the court's discretion [i.e. the common law power to exclude evidence where its prejudicial effect outweighs its probative value].
Q: what is particularly significant about the court's power under s.126 CJA 2003?
It can be invoked in respect of evidence tendered by the defence.

This is v significant, as exclusion of defence evidence is not o/w covered by the court's discretionary powers.
Q: when can the court stop a trial (or direct the jury to acquit) on the basis of hearsay evidence under s.125 CJA 2003
See s.125(1) CJA 2003:
This applies where the court is satisfied at any time after the close of the case for the prosecution that:

(a) the case against D is based wholly or partly on a statement not made in oral evidence in the proceedings (a hearsay statement) ; AND

(b) the evidence provided by the statement is SO UNCONVINCING that, considering its importance to the case against the defendant, his conviction of the offence would be UNSAFE.
Q: is the judge entitled or required to consider exercising his power where s.125(1)(a) applies
Required.
Q: does the power under s. 125 CJA 2003 apply to pleas of insanity under the CP(I)A 1964
Yes - s.125(3)
Q: where are the procedural rules for tendering hearsay evidence set out
See CrimPR Part 20.
Q: when is notice required for tendering a hearsay statement
When tendering under in partic s.114(1)(d) CJA; s.117(1)(c); and s.121 (NOT for othe forms of hearsay, including common-law etc. under s.117).
Q: can the court vary notice requirements?
Yes. The court may give leave to admit hearsay where notice has not been served; the party entitled to notice may waive their entitlement.
Q: is the court obliged to give leave to a co-D who has failed to comply w/ notice procedure under Part 20?
NO.
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