Hearsay Evidence (Crim)

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  • Created on: 20-07-17 16:25

When is Hearsay Admissable?

Generally hearsay is not admissible however it is admissible in certain circumstances which will be considered below.

s.114 (1) Criminal Justice Act 2003  is the section that codifies the way hearsay may be admitted.

It incorporates the statutory exceptions and the common law. 

Hearsay may be admissible if it comes within one of the following four exceptions: 

  • ·It is admissible under a statutory provision, s.114 (1)(a);

  • It is admissible under a preserved common law rule, s.114(1)(b);

  • The parties agree that it can go in, s.114(1)(c); or
  • The court gives leave to admit the statement where it is satisfied it is in the interests of justice to admit it s.114(1)(d).
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It is admissible under a statutory provision (sect

There are numerous exceptions for example:

·       Section 9 Criminal Justice Act 1967;

·       Section 76 Police and Criminal Evidence Act 1984;

·       Schedule 2 Criminal Procedure and Investigations Act 1996;

·       Section 11 and 12 Road Traffic Offenders Act 1988; and~

·       Section 30 Youth Justice and Criminal Evidence Act 1999.

New Exceptions in the Act: 

·       Section 116: unavailable witnesses;

·       Section 117: business documents;

·       Section 119: inconsistent statements; and

·       Section 120: out of court statements of a witness.

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S.9 CJA 67 - Proof of Written Statement

This is the most important exception to the hearsay rule is used daily in both the Magistrates’ and Crown court

A witness statement can be read out if: 

·       the statement is signed by the maker;

·       contains a declaration in specified word’s as to the statement’s truth;

·       the statement has been served on the opposing party; and

·       within 7 days the opposing party has not objected to the statement being admitted
as hearsay.

 If the opposing party objects the court does not have any power to overrule the objection and the evidence is excluded.  Usually used for non-controversial matters where the parties agree.

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S.116 CJA 03 - Unavailable Witness

So you must satisfy the criteria in s.116(1) before you go on to consider different conditions for admissibility. If you cannot satisfy this test you cannot move on.
So your starting point must always be to ask yourself:

·       Would the individual’s oral evidence have been admissible as evidence of that matter?

·       Can the person be identified to the court’s satisfaction?

·       Did the person have the requisite capability at the time they made the statement?

Once these steps have been satisfied you can then move on to s.116(2)

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S.116(2) CJA 03 Five prescribed criteria for admis

Five prescribed criteria for admission:

(a)  Dead;

(b)  Unfit because of mental or bodily condition;

(c)  Outside UK and not reasonably practicable to get there;

(d)  Cannot be found and such steps as it is reasonably practicable to take to find him have
been taken; or

(e)   Does not give evidence through fear (leave of court required for this category). (s.116 (4)) s.116(3) gives a wide definition of fear)

With the exception of (e) above you do not need leave of the court to admit the evidence.

Once the conditions are met the hearsay will usually be admitted, provide the relevant notices
have been served although there is discretion to exclude, see section 126 later. 

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S.116(2) CJA 03 Clarification

(a)  and (b) Witness is dead or unfit -  Can include mental or physical capacity, medical evidence required, for example, medical report or a death certificate.

(c) outside UK and not reasonably practicable to secure his attendance.

Both conditions must be satisfied. The inclusion of the word reasonably means you have to
consider the practical aspects of securing their attendance.
For example:

·       How important is the evidence?

·       How expensive or  inconvenient would it be for them to attend?

·       How serious is the offence?

·       Could you use a  by video link instead?

·       Balance this against the  prejudice likely to be caused to the defendant because they would
 have no opportunity to cross-examine.

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S.116(2) CJA 03 Clarification Continued...

(d) cannot be found through reasonable steps - Party must prove all reasonable steps have been taken, including evidence of what they actually did to try and locate the witness and the results.If insufficient evidence regarding the search is present the evidence will not be admitted.
There is a long standing right to confrontation (ECHR Art 6) which should not be departed from lightl

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S.116(2) CJA 03 Clarification Continued...

 (e) the witness does not give evidence through fear

The fear must be proved by admissible evidence but it does not need to have a rational basis. 
The reason the witness does not want to give evidence can be proved in a voir dire. 
Where a party wishes to rely on the fear category they must seek the leave of the court.
Court must take into consideration:

  • the statement's contents; 
  • the risk of the statement's admission or exclusion will result in unfairness to proceedings (how difficult will it be to challenge statement if person unwilling to give oral evidence)
  • In appropriate cases to the fact that a direction under section 19 of the YJCEA 1999 could be made (a special measures direction); and
  • any other relevant circumstance.

The court can only admit hearsay under (e) if it feels it is in the interest of justice. This is an important safeguard to protect the defendant’s right to a fair trial.
Special measures should be considered in cases involving fear, if the witness could give evidence in a different way this would be better than reading out their statement under these provisions.

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Lots of documents are produced everyday in the course of business.e.g order forms, invoices,
delivery notes, and placed entries in a delivery system, which could become relevant months,
possibly years later.
This section provides a way that these documents can be placed before the court without the
individual having to attend court to give evidence directly.

 In order to be admissible:

  • the document or the part containing the statement must have been 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 this statement (the relevant person)  must have 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 must have  received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.
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Business Documents continued:

The party seeking its admission need only satisfy the criteria that the document was created
or received in the course of the trade.

Therefore once you are able to prove that the document was produced in that way they will be
admissible if they are relevant.

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Criminal investigation or proceedings

Sometimes documents are produced directly as a result of a criminal investigation. For example, someone is asked to prepare a report in order to work out exactly how much stock has been stolen from a warehouse. The police are taking this statement for the purpose of criminal proceedings and consequently it may fall under this section. 

with the rules set out in s.117(5).

1.  Any of the five conditions mentioned in section 116(2) is satisfied , or

2.  The relevant person cannot reasonably be expected to have any recollection of the matters

   dealt with in the statement (having regard to the length of time since he supplied the

   information and all other circumstances).

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Criminal investigation or proceedings continued

s.117(7) The court can make a direction to exclude a statement if the statement’s reliability,
(as evidence for the purpose for which it is tendered), is doubtful in view of:

1.  its contents;

2.  the source of the information contained in it;

3.  the way in which, or the circumstances in which, the information was supplied or received; or

4.  the way in which or the circumstances in which the document concerned was created or

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If a witness gives oral evidence and he admits making a previous inconsistent statement,
(or it is proved under section 3, 4 and 5 of the Criminal Procedure Act 1865) it is admissible in
evidence of any matter stated in it of which oral evidence by that person would be admissible.
This means that the court will have heard their evidence in court but they will also know what they
said in their earlier statement.

The judge or jury can then decide which version they believe is the truth.

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Under s.120 Criminal Justice Act 2003 a witness’s previous consistent statement can be admitted
in evidence in the following situations:

·        To rebut the allegation that the witness’s evidence has been recently

     fabricated s.120(2) CJA.

·       Where a memory refreshing document has been referred to by the witness, the document is admissible as evidence of any matter of which oral evidence by him would have been
admissible s.120(3).

·       Where the witness has made the statement, which to the best of the witness’s knowledge is
true and where one of the following conditions is satisfied:

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  • The statement identifies or describes a person, object or place under s.120 (5)

  • The statement was made when the matters were fresh in the witness's memory but he does not remember them and cannot reasonably be expected to remember them well enough to give oral evidence about them s.120(6) 

  • The witness, as the victim of the alleged crime, had made a complaint to another person about what happened, as soon as could reasonably be expected after the incident and it was not the result of a threat or promise s.120(7) 

This section is designed to add to the witness's testimony not to take the place of it 

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It is admissible under a preserved common law rule

s.118 preserves the following eight common law exceptions:

1.  Public documents (e.g. dictionary);

2.  Evidence of reputation (very rare);

3.  Reputation or family tradition (very rare);

4.  Res Gestae (dying declarations, may be superseded by s.116);

5.  Confessions and mixed statements (almost entirely redundant due to s.76 PACE);

6.  Admissions by defendant’s agent;

7.  Statements made in furtherance of common enterprise (could possibly arise in trials of

8.  Expert witness’ reference to a body of expertise relevant to his field.

 The parties agree that it can go in: s.114(1)(c)

Hearsay of whatever nature may be agreed. 

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It is admissible under a preserved common law rule

The court gives leave to admit the statement where it is satisfied it is in the interests of justice to admit it s.114(1)(d). Courts discretion to admit. This can be classed as a safety valve and potentially allows a lot more hearsay before the courts.  It is therefore a very important section.  It applies to hearsay that is NOT already covered by one of the routes to admission under s.114 (1) (a) to (c).

The court must be satisfied that it is in the interests of justice for the hearsay to be admitted.  The court will take into account a number of factors (s.114(2)(a)-(i)) including:
1.  Probative or contextual value;
2.  Other available evidence on the matter; 
3.  Importance of the matter or evidence;
4.  Circumstances in which the statement was made;
5.  How reliable the maker of the statement appears to be;
6.  How reliable the evidence of the making of the statement appears to be;
7.  Whether oral evidence of the matter stated can be given and, if not, why not;
8.  The difficulty involved in challenging the statement:
9.  The extent to which that difficulty would cause prejudice; 
This gives the court an inclusionary discretion to admit hearsay.

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The Safeguards (1)

 Not admissible unless : 
·       admissible under s.117 or s.119 or s.120;
·       the parties agree to admit it;
·       it is in the interests of justice to admit it.

S.116, 117, 119 and 120 statements are not admissible if the maker of (or in the case of section  
117 supplier or receiver) lacks capacity to understand the questions and answers.
This enables a party against whom hearsay is adduced to call evidence to impugn the maker’s  
credibility as if he had given oral evidence.

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The Safeguards (2)

Only available in Crown Court for trials on indictment only:
If the judge is satisfied, at any time after close of the prosecution case, that the case is based wholly or partly on hearsay evidence and the hearsay evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction for 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 retrial, discharge the jury.

The court can refuse to admit a hearsay statement if it is satisfied that the case for excluding it, taking into account the danger that to admit it would result in undue waste of time, substantially outweighs
the case for admitting it taking into consideration the value of the evidence.

Nothing in this chapter prejudices the existing power of the courts to exclude evidence under
various statutes for example section 78 of Police and Criminal Evidence Act 1984
(exclusion of unfair evidence).

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Human Rights And Hearsay

ECHR Article 6(3)- any conviction based solely or mainly on hearsay could possibly violate 6(3)(d)  
which gives a defendant the right to “examine and 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.” The  hearsay rules apply to both the prosecution and the defence
consequently it was thought that this maintained an appropriate balance between the parties.

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1.  Decide if the statement is hearsay or not. (Focus: are you truing to prove the truth of the
statement?) If it is hearsay, the starting point is that it is not admissible.

2.  Consider s.114 CJA 2003

3.  Do any exceptions apply to the statement? For example:

a.     s.9 CJA 1967

b.     s.76 PACE 1984

c.      s.116

d.     s.117

e.     s.114 (b)-(d)

4.  Are any safeguards in place? Consider s.126 for example

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