1. law, govt and politics

 An Update On Developments In the law of Hearsay Paul Keleher QC
This lecture will focus upon the radical changes brought about to the law of hearsay by the
Criminal Justice Act 2003 and the development of the case law since then.
In particular, attention will be devoted to
• The diverse ways in which the change has affected the trial process
• The inter-relationship between the change in this aspect of the law of evidence and
the European jurisprudence
• The practical ways in which the change can be exploited
• The criteria that affect the admissibility of this evidence and ways in which it can be
excluded
25 Bedford Row London WC1R 4HD An Update On Developments In the law of Hearsay 1. INTRODUCTION What is Hearsay? At common law: ‐ •
Any representation of fact or opinion •
made by a person otherwise than in oral evidence in the proceedings in question •
when tendered as evidence of any matter stated therein Subramaniam v. Public Prosecutor[1956] 1 W.L.R. 956 at 969 "Evidence of a statement made to a witness ... may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made". Implied assertions R. v. Kearley (Alan Robert) (No.1)[1992] 2 A.C. 2282 ‐ implied assertions were hearsay and thus inadmissible R. v Sukadave Singh [2006] 2 Cr. App. R. 12 CA ‐ as a result of the change in the definition of hearsay, implied assertions were not hearsay, and so were admissible. R. v Leonard, 173 J.P. 366, C.A. [2009] EWCA Crim 1251 (distinguishing R. v. Sukadave Singh) R v K (M) [2007] EWCA Crim. 3150 © Paul Keleher 2009 2
2. PROCEDURE The Criminal Procedure Rules 2005 (S.I. 2005 No. 384), Part 34 require notice to be given of an intention to introduce hearsay evidence. 34.3. The prosecutor must give notice of hearsay evidence ‐ (a) in a magistrates' court, at the same time as he complies or purports to comply with section 3 of the Criminal Procedure and Investigations Act 1996 (disclosure by prosecutor); or (b) in the Crown Court, not more than 14 days after ‐ (i) the committal or transfer etc.. 34.4. When a defendant must give notice of hearsay evidence A defendant must give notice of hearsay evidence not more than 14 days after the prosecutor has complied with or purported to comply with section 3 of the Criminal Procedure and Investigations Act 1996 (disclosure by prosecutor). 34.5. Opposing the introduction of hearsay evidence A party who receives a notice of hearsay evidence may oppose it by giving notice within 14 days in the form set out in the Practice Direction to the court officer and all other parties. 34.6 ‐ There is no paragraph 36 34.7. The court may dispense with these requirements Unless the opposing party is prejudiced by late notice. Failure to give such notice may be fatal to the application and the more flagrant the breach the less likely it is that evidence will be admitted: R. v. Musone (Ibrahim)[2007] 2 Cr.App.R. 29. © Paul Keleher 2009 3
3. OUTLINE OF LEGISLATION Section 115 ‐ when read with section 114(1) has not changed the working definition of hearsay – save for implied assertions Section 118(2) ‐ with the exception of the rules preserved by subsection (1), the common law rules governing the admissibility of hearsay evidence in criminal proceedings are abolished Section 118(1) ‐ preserves the common law rules about: ‐ 1 Public information etc o published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) o public documents (such as public registers, and returns made under public authority with respect to matters of public interest) o records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) o 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.] 2 Reputation as to character 3 Reputation or family tradition o evidence of reputation or family tradition o pedigree or the existence of a marriage, o the existence of any public or general right, or o the identity of any person or thing.] 4 Res gestae 5 Confessions etc.] 6 Admissions by agents etc 7 Common enterprise o a statement made by a party to a common enterprise is admissible against another party to the enterprise. 8 Expert evidence o an expert witness may draw on the body of expertise relevant to his field. © Paul Keleher 2009 4
Section 114(1) ‐ a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if: ‐ (a) any provision of this Chapter or any other statutory provision makes it admissible55 (b) it is admissible under one of the common law exceptions preserved by section 118 (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. © Paul Keleher 2009 5
4. SPECIFIC CATEGORIES OF ADMISSIBLE HEARSAY EVIDENCE Section 116 ‐ Cases where a witness is unavailable •
s.116 re‐enacts the old law on absent witnesses and the rules are the same apart from one perhaps important difference. Where a witness is dead, unfit, abroad or can’t be located the Act itself gives the court no discretion, merely providing that a statement "is admissible" if the relevant conditions are satisfied. •
Under the 1988 Act where there was a presumption against admission Procedure The judge should conduct a voir dire to establish the facts behind the witness’s absence, hear evidence and make findings of fact ‐ R v T (D) [2009] EWCA Crim 1213. The prosecution have to make proper efforts to get a witness to court and not simply go through the motions: ‐ McEwan v. DPP [2007] EWHC 740 (Admin); (2007) ,171 J.P. 308 , DC R. v. Adams (Ishmael) [2008] 1 Cr.App.R. 35 , CA What is "reasonably practicable" depends upon, inter alia, the relative importance of the witness, and of police resources R. v. Coughlan [1999] 5 Archbold News 2 , CA (98 05345 Y3) Absence of sole or decisive witnesses Al‐Khawaja and Tahery V. The United Kingdom [2009] ECHR 26766/05 (20 January 2009), ‐ it was held that where the evidence of an absent witness is the sole or decisive evidence in the case the right to a fair trial is violated. R v Horncastle [2009] 2 Cr.App.R. 15, [2009] EWCA Crim 964 © Paul Keleher 2009 6
•
the right to a fair trial is not necessarily violated by the absence of a ‘decisive’ witness. •
The CJA 2003 does provide real safeguards against unfairness by admitting hearsay evidence •
each case is to be decided on its own merits, and the Court should look long and hard at the evidence and the criteria in s.114 before admitting hearsay evidence under this section. Section 117 ‐ Business and other documents Section 119 ‐ Inconsistent statements They are evidence upon which a jury can rely. Section 120 ‐ Other previous statements of witnesses Three ways these become evidence in the case and prove their contents •
Firstly, a witness is cross‐examined about their witness statement and parts are received in evidence •
Secondly, a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. The significant change here is that there need be no allegation of recent fabrication merely the absence on the earlier occasion of a factor which is being advanced as a possible explanation for the falsity of the evidence in court: R. v. Athwal and others [2009] EWCA Crim 789 •
Thirdly, while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth provided © Paul Keleher 2009 7
o any of the following three conditions is satisfied, ƒ
the statement identifies or describes a person, object or place ƒ
the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings ƒ
it was a recent complaint, provided certain conditions are satisfied; it need not be a complaint of a sexual offence Section 121 ‐ Additional requirement for admissibility of multiple hearsay A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless ‐ •
either of the statements is admissible under section 117, [business document]119 [previous inconsistent statement], or 120 [other previous statements], •
all parties to the proceedings so agree, or •
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. When making a decision under subsection (1)(c), a court should refer to the factors set out in section 114(2) when deciding whether to admit the evidence: R. v. Musone (Ibrahim)[2007] 2 Cr.App.R. 29 , CA .8 Section 122 ‐ Where a statement made in a document is admitted in evidence under section 119, or 120 , and exhibited, the exhibit must not accompany the jury when they retire to consider their verdict unless the court considers it appropriate or all the parties to the proceedings agree that it should accompany the jury © Paul Keleher 2009 8
In R. v. Hulme (Mark Simon) [2007] 1 Cr.App.R. 26 , CA Section 123 ‐ Capability to make statement For the purposes of this section a person has the required capability if he is capable of understanding questions put to him about the matters stated, and giving answers to such questions which can be understood Section 124 ‐ credibility of maker; in essence any evidence which would have been admissible as relevant to the credibility of the maker of the statement had they been a witness is admissible in the proceedings Section 125 ‐ Stopping the case where evidence is unconvincing Section 127 ‐ Expert evidence Section 128 ‐ inserts a new section 76A into the PACE Act 1984 allowing one accused to adduce evidence of a co‐accused’s confession R v Johnson (Jason Everton) [2007] EWCA Crim 1651 Section 126 ‐ provides the Court's general discretion to exclude evidence The application of the test in section 78 is unlikely to produce a different result from application of the "interests of justice" test in section 114, and that a court would be likely to take account of the matters in section 114(2) in considering fairness under section 78 or in relation to the jurisprudence of the European Court of Human Rights as to the requirements of a fair trial Horncastle [2009] 2 Cr.App.R. 15, [2009] EWCA Crim 964
R. v. Cole (Konrad); R. v. Keet [2008] 1 Cr.App.R. 5 , CA © Paul Keleher 2009 9
5. CRITERIA FOR ADMISSION UNDER SECTION 114(1)(d) The distinction between what is admissible and what should be admitted R. v. Y [2008] 1 Cr.App.R. 34 , CA R. v. McLean (Richard) [2008] 1 Cr.App.R. 11 , CA, “s.114(1)(d) does not make police interviews routinely admissible in the case of persons other than the interviewee, and that the reasons why they are ordinarily not admissible except in the case of the interviewee are likely to continue to mean that in the great majority of cases it will not be in the interests of justice to admit them in the case of any other person.” General Observations R v Horncastle [2009] 2 Cr.App.R. 15, [2009] EWCA Crim 964 ‐ it is a misinterpretation of European law and the ECHR to say that hearsay evidence of the sole or decisive witness was inadmissible, on the subject of whether the evidence should be admitted – quite another question ‐ the Court did stress the following: ‐ •
Paragraph 48 ‐ The CJA 2003 is concerned with identified but absent witnesses not anonymous witnesses. Different considerations apply to anonymous witnesses. •
Paragraph 58 ‐ in explaining why hearsay evidence could be admitted the Court said o the code set out in the CJA 2003 provides the rigorous conditions for admissibility o The essential considerations are whether there is a justifiable reason for absence and whether the evidence can be assessed and tested so that it is safe to rely upon it © Paul Keleher 2009 10
o the difficulties facing a defendant when an application is made to admit hearsay evidence are well understood by the courts of England and Wales; the statutory conditions in the CJA 2003 are rigorously applied •
Paragraph 75 – after reflecting upon the judge’s function in withdrawing a case from the jury under s.125, the Court went on to say: ‐ “It does not follow that all hearsay evidence should automatically be admitted and any decision upon it postponed to the s.125 one at the end of the trial. Where the evidence is tendered under s.114(1)(d) , the CJA 2003 requires by s.114(2) the judge to address the question of admissibility according to the interests of justice. Where the reason for advancing hearsay evidence is that the witness is in fear, the CJA 2003 contains a similar requirement in s.116(4). In each case, further statutory considerations are provided which must be weighed by the trial judge. It is also possible that there may be a residuum of cases where the exclusionary power conferred by s.78 of the Police and Criminal Evidence Act 1984 falls for application.” •
Paragraph 78 – “hearsay is necessarily second best evidence…..the very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission…………..S.114(2)(i) moreover requires consideration of the injurious consequences of admission (‘prejudice’) to the party facing the evidence which will arise from the difficulty of challenging it. Since the burden of proving the case is upon the Crown and to the high criminal standard, very considerable care will need to be taken in any case in which the Crown seeks to rely upon an out‐of‐court statement as supplying it with a case against the defendant when otherwise it would have none. In such a case if there is genuine difficulty in the defendant challenging, and the jury evaluating, the evidence, the potential damage to the defendant from that difficulty is very large.” © Paul Keleher 2009 11
The judge should performs the task of assessing, amongst other things, the reliability of the evidence and the degree of difficulty in challenging it. •
Paragraph 88 ‐ the importance and degree to which efforts should be made to get a witness to court: ‐ “It is, however, important that all possible efforts are made to get the witness to court…..The witness must be given all possible support, but also made to understand the importance of the citizen's duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed.” “it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the judge may have to rule under s.125 that a conviction relying upon it would be unsafe.” © Paul Keleher 2009 12
6. THE CRITERIA IN SECTION 114(2). Necessity (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; It appears that the more necessary the evidence is, the more likely it is to be admitted subject to the other criteria Reliabiity (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; Two issues of reliability not to be confused or elided A useful guide to the approach to these twin issues of necessity and reliability is the Supreme Court of Canada in R. v. Khelawon [2006] 2 S.C.R. 787. “The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested by the ultimate trier of fact. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails.” © Paul Keleher 2009 13
R v Musone [2007] 2 Cr.App.R. 379 at p 386 “Section 114(2)(e) requires the judge and not the jury to consider how reliable the maker of the statement appears to be. It would render that factor nugatory if the answer, as given by the judge, was merely that it was a matter for the jury. In considering admissibility, reliability is a matter for the judge. If it appears to the judge that the maker of the statement is unreliable that is a powerful indication that the statement should not be admitted in the interests of justice. The fact that that unreliability can be demonstrated to the jury, if the statement is admitted, does not seem to us to be a legitimate consideration in deciding whether to admit the statement or not. If it were, then the more the maker of the statement was obviously unreliable, the more likely it would be that the statement would be admitted. That is not an effect envisaged by s.114.” R v Pulley [2008] EWCA Crim 260 at paragraph 53 “We cannot accept the proposition that the presence of serious inconsistencies and lies in the statement of an absent witness necessarily operates in favour of its admission, because inconsistencies favour the defence. On that approach the court is less likely to admit an apparently reliable statement than an apparently unreliable statement. That conflicts with proposition (iv) in Sellick, cited by this court at paragraph 16 of Cole, and is contrary to section 114(2)(e) of the 2003 Act, which provides that the court must have regard to: "how reliable the maker of the statement appears to be".” •
The fact that that unreliability can be demonstrated to the jury is not a legitimate consideration in deciding whether to admit the statement or not •
If the maker of the statement is, per se, unreliable that is a powerful indication that the statement should simply not be admitted. Reason For Absence Of Witness (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; © Paul Keleher 2009 14
McEwan v. DPP,171 J.P. 308 , DC ‐ Section 114(1)(d) is a "safety valve" and that "it would have to be an exceptional case for it to be relied upon ... to rescue the prosecution from the consequences of its own failures" R v Z [2009] EWCA Crim 20 – “In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare [2006] EWCA Crim 2512 at paragraph 30: “We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.” But section 114(1)(d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116” Sak v. CPS, 172 J.P. 89, DC 15 [2007] EWHC 2886 (Admin) ‐ evidence that is inadmissible under s.116 may be admitted under s.114 PREJUDICE Horncastle [2009] 2 Cr.App.R. 15, [2009] EWCA Crim 964 paragraph 66: ‐ “many juries sit for several days or weeks examining evidence which is rigorously tested, and if, amongst that evidence, it receives the written statement of a witness who is ill, or dead, or frightened to appear, it is often perfectly able to understand its limitations.” If there is no other evidence dealing with the issue and the matter may be outside the defendant’s personal knowledge, not only may there be no way of assessing its reliability, but neither can it be seriously challenged. © Paul Keleher 2009 15
7. DEFENCE USE OF HEARSAY EVIDENCE Confession by Co‐Accused Section 128 inserts s.76A Police and Criminal Evidence Act 1984; confessions by co‐
accused are now admissible at the behest of a defendant. R. v. Johnson (Jason Everton),171 J.P. 574 , CA [2007] EWCA Crim 1651 A co‐accused who has pleaded guilty is no longer a co‐accused and in any event he can be compelled to give evidence for the defendant at the latter's trial; R. v. Finch (David Barry) [2007] 1 Cr.App.R. 33 , CA A confession by an absent co‐accused admitted under section 23 of the Criminal Justice Act 1988: R. v. James [2005] 2 Cr.App.R. 71(4), C.A. Confession by Third Party At common law, evidence of a confession by a third party – that is to say not a co‐
accused ‐ was inadmissible as hearsay: R. v. Turner (B.J.),61 Cr.App.R. 67 , CA ; R. v. Blastland (Douglas) [1986] A.C. 41 , HL Whether such a confession will be admissible under the 2003 Act will depend on whether it can be brought within any of paragraphs (a) to (d) of section 114(1) •
If the witness is available they should be called ‐ R. v. Johnson (Jason Everton),171 J.P. 574 , CA [2007] EWCA Crim 1651 •
If they decline to give evidence – as is their right, citing the right not to incriminate oneself – they can be cross‐examined about the previous confession and whether they admit it or not, once it is proved, it is evidence of the truth of its contents – s.119 •
If the witness is unavailable, s.116 applies. © Paul Keleher 2009 16
Example of other admissible hearsay evidence T, a young woman living alone in a small flat had gone away for several weeks on holiday. A few days after her return police raided the flat and found 3 firearms hidden in a box. She made no comment in interview. At her trial application was made to adduce evidence: ‐ (a) that she asked her brother if he had allowed anyone else to have access to her premises. He named a man he believed was responsible but was evasive on the issue of how that man had gained access; (b) from her sister that she had asked her brother to explain how the guns came to be in their sister’s flat and that he had been evasive but had stated that he believed he had been ‘used’ and that he knew to whom the guns belonged; (c) from her solicitor to say that she had interviewed the brother. He had denied being responsible but named the man he believed was. He refused to say how that man could have gained access to the premises and stated that if attempts were made to call him as a witness he would not attend. What did we do to maximise the chances of this application succeeding? (i) We served a defence statement in good time and containing as much detail as possible so that the application could be viewed against the backdrop of what the defendant would say (ii) We served in good time a notice of intention to adduce the hearsay evidence (iii) The solicitor made careful notes of the interview and produced a witness statement containing the hearsay evidence (iv) The solicitor took an equally careful statement from the sister detailing the hearsay evidence (v) We applied for a witness summons at the beginning of the trial for the brother (vi) The solicitor made a full witness statement concerning attempts to locate the brother and serve the summons and was available to give that evidence if required 8. CONCLUSION © Paul Keleher 2009 17