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Hearsay - Coggle Diagram

- - - - The information stamped on onto a document is hearsay evidence of the matters stated eg the date
      - Business documents are usually not seen as admissible, but the hearsay point should still be taken to ensure that the dangers can be properly assessed and that hearsay is not nodded of
      - Further examples of hearsay are that a party to a conversation conducted through an Interpreter infringes the hearsay rule by seeking to prove what the other party said by relating to the court what the interpreter said
      - Additionally, a police officer who testifies that a person a person is a known heroin user is giving hearsay evidence if the basis of that knowledge is information supplied by others including the person in question
        
        Care must always be taken to ascertain the matter stated as there may be more than one such matter in issue
        
        For example, the defence to murder was that the crime was committed by S who did not testify
        
        It was said that S had confessed in a telephone conversation to E which E had recorded
        
        The decision not to call E led to hearsay problems both as to the content of the recording which if it was indeed a third party confession might have been admissible in the interests of justice and also the need to prove that the voice heard on the recording was indeed of S which could not be proved simply by reliance of E’s out of court assertion to that effect
        
        Intimidation in Fear Cases
        
        If the reason for the witness's failure to give evidence in person is that the witness was intimidated by or on behalf of the accused, who then contests the admissibility of the statement
        
        The accused is in a weak position to claim infringement of the right to a fair trial
        
        For example, it was said that to allow the accused to engender the fear and then to benefit from it would be incompatible with the rights of victims and 'no court could be expected to allow the integrity of its proceedings to be subverted in this way'
        
        But the problem posed by intimidation of witnesses, for example by organised criminals, does not provide a licence to prosecutors to resort to proof by hearsay and the conditions of admissibility must be established in the same way and to the same extent as in other cases where a witness is in fear
        
        Leave in Fear Cases
        
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- - - - In the case of twist- a series of conjoined appeals it was attributed some of the difficulty to the continued use of expression such as implied assertion that are relics of the common law
      - So, they set a clear three stage test for ascertaining whether communications are hearsay
      - The TEST in Twist:
      - Firstly, Ascertain the matter that is sought to be proved- it is concerned with what the party is seeking to prove and the purpose of the party in adducing a communication which has to be first ascertain
      - Secondly, whether there is a statement of that matter sought to be proved is a relevant one and the next question is whether there is a statement of that matter in the communication. If not, the communication is not a statement at all, no question of hearsay arises
      - Thirdly, if the communication does state the matter, was it one of the purposes that the recipient or any other person, should believe that matter or that a person should act upon the basis that it is stated or that a machine was should operate on that basis? If yes, it is hearsay; if no, it is not?
        
        Unavailable Witnesses
        
        A literal reading of the CJA 2003, s. 116, suggests that hearsay falling within its provisions is (with the exception of witnesses in fear) automatically admissible, and this was the original intention
        
        However, the fair trial rights of defendants have required a different stance following the decision of the Supreme Court as hearsay cannot be 'nodded through or adduced as a matter of routine'
        
        But must be carefully handled with due regard to its significance in the case and the possible weaknesses of hearsay evidence
        
        In most cases the mechanism for ensuring that unsatisfactory hearsay tendered by the prosecution is excluded is the PACE 1984, s. 78,
        
        In relation to hearsay tendered by the defence, the PACE 1984, s. 78, does not apply, leading to concerns that the CJA 2003 would facilitate the manufacture of hearsay evidence
        
        However, there is a further discretion to exclude contained in the CJA 2003, s. 126(1)(b), which applies equally to prosecution and defence evidence
        
        Fear
        
        The terms of the CJA 2003, s. 116(2)(e), do not require that the fear must be attributable to the accused, nor does the ECHR, Article 6
        
        An accused cannot complain of the use of an absent witness's statement where it is fear of a co-accused that has caused a prosecution witness to take flight
        
        However, a causal link between the fear and the failure or refusal to give evidence must be proved, and how it is proved depends upon the background together with the history and circumstances of the particular case
        
        Particular care is needed to avoid prejudice arising from any assumption by the jury that D is the cause of the absence of the witness, or of a witness's failure to give evidence in relation to the subject-matter of the statement
        
        Factors to be Taken into Account
        
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        Judicial Assessment of Matters Relevant to Proper Assessment of Reliability
        
        Evidence admissible under the CJA 2003, s. 124, is relevant not only to the jury's ultimate assessment of the credibility of hearsay
        
        But also to the point in the judge's ruling on admissibility where it is necessary to consider what evidence is available for the proper testing of hearsay
        
        Where hearsay evidence is proposed to be given, it may be that its credibility is beyond dispute: it is 'demonstrably reliable
        
        In most cases, it will be necessary to consider whether the reliability of the evidence is capable of proper testing and assessment by the jury
        
        The judge must consider what evidence is available to assist the jury in this process
        
        Disclosure of Matters Relevant to Credibility
        
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- - - - In some case the mere making of the statement may have significance in law- quite aside from any question from its truth
      - For example, in the case the question was whether a massage parlour was being run as a brothel?
      - It was held that it was open to the police officers who had attended the premises posing as customers to prove that the women employed there had offered them various sexual serviced.
      - There was no question of hearsay
      - The relevant issue was simply whether the sexual offers had been made
      - In another case diaries and notebook entries made by an individual who did not give evidence were relevant and admissible because the statements representing the directing mind and identification principle so there was no hearsay issue as there might have been has statements been tendered to for other purposes without calling the maker as a witness
        
        Criminal Justice Act 2003, s. 114
        
        A statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
        
        Any other statutory provision makes it admissible
        
        Any rule of law preserved by section 118 makes it admissible
        
        All parties to the proceedings agree to it being admissible, or
        
        the court is satisfied that it is in the interests of justice for it to be admissible.
        
        Power to Stop Trial Where Case Based on Hearsay
        
        Criminal Justice Act 2003, s. 125
        
        If on a defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that—
        
        The case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
        
        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,
        
        The court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury
        
        First-hand Hearsay from Identifiable Witness
        
        The CJA 2003, s. 116, applies only to first-hand hearsay
        
        Where a person makes a statement, but it is not clear whether the statement is based on personal knowledge or on something the maker has been told, the s. 116 statement should not be admitted
        
        For example, the proposed witness was outside the UK and it was not reasonably practicable to secure his attendance at D's trial
        
        However it was unclear whether his statement about threats made by prosecution witnesses against D was based on first-hand knowledge, and it could not therefore be admitted under s. 116
        
        Multiple hearsay may be admissible under s. 121, and documents admissible under s. 117 ( may also contain more than one degree of hearsay
        
        Evidence Admissible to Undermine Hearsay
        
        The CJA 2003, s. 124, governs the admissibility of certain evidence directed towards the discrediting of a hearsay statement
        
        Where the maker of the statement does not give oral evidence in connection with the subject-matter of the statement
        
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        In order to counterbalance the absence of cross-examination, may also with the leave of the court give evidence of matters as to which the witness's answers would have been final had the witness given evidence in person was said to form an essential part of the statutory protection against unfair trial)
        
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        Hearsay Exceptions: (2) Hearsay Admissible in the Interests of Justice
        
        Criminal Justice Act 2003, s. 114
        
        A statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
        
        The court is satisfied that it is in the interests of justice for it to be admissible
        
        The court must have regard to the following factors (and to any others it considers relevant)—
        
        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;
        
        What other evidence has been, or can be, given on the matter or evidence
        
        How important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
        
        The circumstances in which the statement was made;
        
        How reliable the maker of the statement appears to be;
        
        How reliable the evidence of the making of the statement appears to be;
        
        Whether oral evidence of the matter stated can be given and, if not, why it cannot;
        
        The amount of difficulty involved in challenging the statement;
        
        The extent to which that difficulty would be likely to prejudice the party facing it
        
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- - - - Criminal Justice Act 2003, s. 118
        
        The following rules of law are preserved.
      - Expert evidence
        
        Any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field
        
        Technically speaking, where an expert draws on the work of others in order to form an opinion, an element of hearsay is necessarily involved
        
        Whether this is objectionable or not depends on the nature of the work referred to
        
        It was accepted that 'the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence', and as such is not subject to the hearsay rule
        
        Where, however, an expert relies on the existence or non-existence of some fact which is basic to the question on which the expert is asked to give an opinion, that fact must be proved by admissible evidence
      - Hearsay Exceptions: (5) Additional Requirements for the Use of Multiple Hearsay
        
        The CJA 2003, s. 121, stipulates that only limited use can be made of multiple hearsay
        
        This appears to apply whether the hearsay in question is tendered under the new statutory exceptions contained in the Act itself, or under the preserved common-law exceptions, or under other statutory provisions, given that the new rule is negative in form and defines hearsay evidence in the broadest of terms.
        
        Multiple hearsay (such as 'A told me that B told him that D shot V') is not admissible even if both the statement by A and the statement by B fit within one or more of the various exceptions to the hearsay rule (e.g., B's statement is a spontaneous statement made as part of the res gestae, and A's statement is admissible under s. 116 because A has died since making it)
        
        The only exceptions to this principle are where one of the statements is admissible as a business document or a previous statement by a witness in the case, where all parties agree, or where the court is so convinced by the value of the evidence that it can invoke the special 'safety valve' in s. 121(1)(c)
- - - - A statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
        
        Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
      - The person who made the statement (the relevant person) is identified to the court's satisfaction, and
      - Any of the five conditions are satisfied
      - The conditions are—
        
        That the relevant person/ witness is dead;
        
        That the relevant person is unfit to be a witness because of his bodily or mental condition;
        
        That the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
        
        that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
        
        That through fear of death or injury or another persons financial loss the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence
        
        Notice
        
        The court may give leave to admit hearsay where notice has not been served, and the party entitled to notice may also waive the entitlement
        
        The Court of Appeal emphasised that the rules are not 'purely decorative':
        
        They exist to ensure that 'tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem'
        
        In that case, multiple hearsay evidence of a confession that would not have passed the test for admissibility of such evidence under s. 121(1)(c) was received without notice
        
        Had notice been served and the introduction of the evidence opposed, it was highly unlikely that an argument could have been articulated to admit it; had it been unopposed it might have been admitted under CrimPR 20.4
        
        Whereby a court must treat unopposed hearsay as admissible by agreement
        
        The court is not obliged to give leave to a co-accused who has failed to comply with the notice procedure
- - - - Under s115(3) highlights that the callers from the case above about D being a dealer cannot be used as Hearsay evidence UNLESS the person making a request has a purpose either to cause the recipient of the call, they believe the matter OR
        
        To cause the recipient to act as though the matter is as stated
        
        Where the caller believe that the recipient already knows the matter in question a therefore not speaking with either of the hearsay purposes, the evidence is original no hearsay evidence
        
        In Kearley the caller's clearly thought D was speaking to himself
        
        So, there was little danger that in making their requests, they were seeking to mislead the person to whom they were speaking or to misrepresent or exaggerate the matter on which the prosecution sought to rely namely their belief that D was a drug dealer
        
        Statements Giving Rise to Inference of Relevant State of mind or Reason for Acting
        
        Where a state of mind is asserted by the speaker with the purpose of causing another to believe it the evidence is hearsay and such evidence may be admissible
        
        A statement from which a state of mind may be inferred may fall outside the definition of matter stated and be classified as original evidence
        
        For example, where the D was accused of the murder of V in revenge if the killing of S
        
        For several months D kept a letter written by a third party protesting that no one had avenged S’s death
        
        The keeping of the letter provided non-hearsay evidence of D’s state of mind in relation to V
        
        The hearsay rule does not apply where the statement is relevant because it provides a reason why a person took a relevant course of action
        
        For example, the hearsay rule does not apply in support of D’s defence of Durres
        
        The rule against hearsay
        
        The rule against hearsay, has never been an absolute prohibition
        
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        The provisions of the CJA 2003 constitute a 'crafted code' which, properly applied, is consistent with the right to fair trial accorded by the ECHR, Article 6(3)(d)
        
        The CJA 2003 contains sufficient safeguards against the risk of wrongful conviction
        
        The CJA 2003 applies to trials and other hearings to which the strict rules of evidence apply, and also to proceedings under the Criminal Procedure (Insanity) Act 1964, s. 4A, the purpose of which is to mirror the fact-finding process at a criminal trial
        
        Oral and Documentary Statements Admissible
        
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- - - - Hearsay and Non-Hearsay Purposes
      - Evidence with More than one purpose
        
        The hearsay rule does not break where a statement is tendered for some reason other than to establish the matter stated
        
        But such evidence may be difficult to distinguish from hearsay
        
        Upon application of the hearsay test it is perfectly possible that evidence may be admissible as original evidence for one purpose and then inadmissible hearsay for another
        
        Such cases require a very careful judicial direction as to the use to which the evidence may properly be put out
        
        For example, where there was a critical failure from the prosecution to distinguish clearly between two manually exclusive purposes of tendering a statement that undermined the alibi defence has to show that both the defence were untrue hearsay and the other being that the statement being tendered represented the truth hearsay
        
        The Four Exceptions and Additional Safeguards for Hearsay Evidence
        
        Bringing hearsay under one of the four exceptions for admissibility is only the first step in a longer process required to ensure that the fairness of the trial is not adversely affected
        
        I was emphasised the importance of the other safeguards to be applied, only some of which appear on the face of the CJA 2003.
        
        They are:
        
        S. 124, which provides for the testing of credibility where the maker of a hearsay statement does not attend to testify
        
        S. 125, which deals with the power to stop a case where evidence is unconvincing and
        
        S. 126, which provides a specific discretion to exclude hearsay evidence
        
        In addition, all prosecution evidence is subject to the court's general powers of discretionary exclusion, of which the PACE 1984, s. 78, is the most important
        
        Under s. 114(2) have become central to the discretionary exclusion of evidence otherwise admissible under the Act's other hearsay exceptions
        
        The judge is also obliged to direct the jury, where hearsay evidence is received, as to the dangers of acting upon it
        
        The main concern of the court, particularly in the more controversial cases of hearsay covered by s. 116(2) (death, illness, absence abroad, the lost witness, and fear) or
        By the interests of justice exception in s. 114(1)(d), is the risk of unreliability, and the extent to which the reliability of the evidence can safely be tested and assessed in circumstances where it cannot be said to be 'demonstrably reliable' (a phase culled from Horncastle). Riat renders the statutory framework in a step-by-step approach that has been commended in subsequent authorities
        
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- - - - Hearsay 4 Exceptions and Additional Safeguards
        
        Four Exceptions under which hearsay evidence may be admitted are set out in the CJA 2003, s. 114
        
        They are;
        
        (1) statutory exceptions (including but not limited to, the exceptions provided in the CJA 2003 itself);
        
        (2) common-law exceptions (but only as preserved by s. 118);
        
        (3) agreement of all parties; and
        
        (4) cases where it is in the 'interests of justice' to admit hearsay
        
        The various exceptions overlap: for example, the first-hand hearsay statement of a deceased victim of violence admissible under the CJA 2003, s. 116, might, if made under the influence of the event itself, also be received under the common-law res gestae exception preserved by s. 118(1)
        
        For example, a letter written by a gynaecologist, since deceased, to the doctor of D's underage stepdaughter, in which he shared his concerns that D was responsible for her pregnancy, was admissible both as first-hand hearsay under s. 116 and as a business document under s. 117
        
        Outside the UK and Not Reasonably Practicable to Secure Attendance or Cannot be Found after Reasonable Steps
        
        The evidence that must be provided to lay a foundation in these two cases is essentially what it is 'reasonable' to expect a party to do, whether that involves taking steps to secure the attendance of a person who is known to be abroad, or to find a person whose whereabouts are unknown
        
        What is reasonable depends on the circumstances, but it is important that the prosecution should be in a position to provide a sufficiently compelling and detailed reason for the absence of any witness to satisfy the requirements of a fair trial
        
        For example, while the authorities had made 'significant efforts' to persuade a reluctant witness based in Antwerp to testify
        
        Business and Other Documents
        
        Criminal Justice Act 2003, s. 117
        
        A statement contained in a document is admissible as evidence of any matter stated if—
        
        Oral evidence given in the proceedings would be admissible as evidence of that matter,
        
        The requirements are satisfied if—
        
        The document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
        
        The person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
        
        Each person (if any) through whom the information was supplied from the relevant person to the person received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office