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Hearsay (Basics of Hearsay (Origin and purpose of Hearsay Rule (Common Law…

- - - - What constitutes as a statement?
        
        A statement is any 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 - s115(2) CJA 2003
  - - - The common law had long established that hearsay evidence could only be introduced if the party seeking to introduce the statement is doing so in order to convince the court that the statement is true
    - - s115(3) CJA 2003 now establishes in statute that the hearsay evidence may only be sought to be introduced if 'the maker of the statement made it in order to convince somebody of its truth
        
        However, if the statement does not directly state a fact in issue, then it does not class as hearsay and can automatically be adduced as evidence, if relevant
        
        Singh (2006), Twist (2011)
- - - - s114(1)(b) - Any rule of law preserved by s118 makes it admissible (Common Law Exceptions)
        
        s118 retains some of the old common law exceptions to the hearsay rule, including:
        
        Confessions - but must be admissible under s76 PACE
        
        Expert Evidence
        
        Common Enterprise
        
        Res Gestae
        
        Statements made where it was so spontaneous and thus the possibility of distortion or concoction can be discounted including excited utterences
      - s114(1)(c) - All parties to the proceedings agree to it being admissible
      - s114(1)(a) - Any provision of this chapter or any other statutory provision makes it admissible (statutory exceptions
        
        s116 (Unavailable witnesses)
        
        s116(5) - the witness unavailability must not have been caused by the party seeking to introduce the hearsay evidence
        
        Pre-conditions for admitting hearsay evidence
        
        The person who made the statement is identified to the court's satisfaction
        
        Any of the five conditions mentioned in subsection 2 is satisfied
        
        Outside of the UK and not practicable to secure attendance
        
        When considering reasonable, practicable steps, 4 factors must be considered and balanced
        
        4 more items...
        
        Cannot be found although reasonable pracitcable steps have been taken to find them
        
        Unfit because of a bodily or mental condition
        
        Will not give oral evidence through fear
        
        s116(3) - Fear is to be widely construed and includes fear of the death or injury of another person or of financial loss
        
        Fear does not need to be reasonable, but must be genuine
        
        3 more items...
        
        To adduce hearsay through fear, the court must grant leave for the statement to be given under s116(2)(e)
        
        1 more item...
        
        W is Dead
        
        The hearsay evidence must be capable of being admissible as evidence if the oral testimony was to be given
        
        s117 (Business Documents)
        
        S117(1) states that in criminal proceedings a statement contained in a document is admissible if 3 requirements are fulfilled
        
        The document was created in the course of business
        
        What classifies as a business document? - s117(2)
        
        Each person through whom the information was supplied received the information in the course of trade... etc.
        
        The person who supplied the document had or may reasonable have had personal knowledge of the matters dealt with
        
        the document or part of the document was created or received by a person in the course of trade, business, profession or other occupation or as the holder of a paid or unpaid office
        
        if the document was created for the purpose of criminal proceedings, the requirements of subsection 5 are fulfilled
        
        What are the requirements under subsection 5?
        
        Any of the five conditions mentioned in s116(2) are satisfied
        
        The person cannot reasonably be expected to have any recollection of the matters dealt with in the statement
        
        The oral evidence would be admissible in proceedings
      - s114(1)(d) - The court is satisfied that it is in the interests of justice for it to be admissible
        
        Provides a residual category to give court more discretion
        
        Criteria to be considered set out under s114(2)
        
        Reliability of the maker of the statement
        
        Circumstances in which the statement was made
        
        Reliability of the evidence on making the statement
        
        Importance of the matter in the context of the case as a whole
        
        can oral evidence be given?
        
        The other evidence available on the matter
        
        Difficulty involved in challenging the statement
        
        Probative value of the statement of for understanding other evidence
        
        how much prejudice will it give the other side?
        
        Generally cannot be used to circumvent the requirements set out under s116
- - - - R v Al-Khawaja (2005)
    - - Al-Khawaja v UK (2009)
        
        Court concluded that in the absence of special considerations such as intimidation of witnesses by D, convictions based on sole or decisive hearsay evidence was not compatible with article 6
        
        The Supreme Court in Horncastle (2009) pointed out that whilst they had to consider the rulings of the ECtHR, they id not have to follow the ruling, and so continued to convict on the basis of sole and decisive hearsay evidence
      - Al-Khawaja & Tahery v UK (2012) (Grand Chamber)
        
        ECtHR conceded to the Supreme Court ruling in Horncastle, and said that convictions based on sole or decisive hearsay evidence does not automatically breach article 6
        
        Court however, must ensure that strong safeguards are put in place to protect Defendants from this situation where possible
        
        Court of Appeal set out guidance on the sole and decisive test in the case of Riat (2012) and gave a 6 step guidance
        
        Is there a specific interest of justice test to be applied?
        
        Witness is in fear [3]
        
        s114(d) residual category [4]
        
        Is there material available to test or assess the reliability of the hearsay evidence? [2]
        
        If prima-facie admissible, should the hearsay nevertheless be excluded as a matter of discretion? [5]
        
        Is there a specific justification for admitting hearsay? ss116-1118 [1]
        
        If the evidence is admitted, should the case be stopped? [6]