Transcript Document

THE ADMISSION OF
HEARSAY EVIDENCE
UNDER SECTIONS 116, 117
AND 114(1)(d) OF THE
CRIMINAL JUSTICE ACT
2003 (AND SUPPLEMENTARY
HEARSAY PROVISIONS OF
THE 2003 ACT)
Sections 116,117 and 114(1)(d)
•Sections 116 and 117 create statutory exceptions to
the hearsay rule which are applicable in criminal
proceedings if various requirements laid down by
the relevant sections are satisfied
•The 2003 Act creates other statutory hearsay
exceptions (considered elsewhere) , preserves a
number of common law hearsay exceptions
(considered elsewhere) and permits the admission
of hearsay under other statutes or by agreement.
•Section 114(1)(d) creates an inclusionary discretion
to admit hearsay evidence in the interests of justice
Statement admissible under s.116 if:
•oral evidence by the maker of the statement
would be admissible as evidence of the matter
stated
•and; the maker of the statement is identified to
court’s satisfaction;
•and; a statutory condition (i.e. a reason for not
calling the maker—see next slide) is satisfied
(i.e. if the statutory condition is proved by the
party tendering the evidence to the appropriate
standard of proof, namely prosecution proof
beyond reasonable doubt or defence proof on
balance of probabilities)
Section 116 conditions
•The alternative statutory conditions are:
•The maker is dead; or
•The maker is unfit to be a witness (bodily or mental
condition); or
•The maker is outside UK and it is not reasonably
practicable to secure his attendance; or
•The maker cannot be found, all reasonably
practicable steps having been taken to find him; or
•The maker does not, through fear (see next slide)
give (or continue to give) evidence either at all or
concerning the subject matter of the hearsay
statement and the court gives leave for the
statement’s admission
Fear and Leave
• Fear is to be widely construed and, for example,
includes both fear of death or injury of another
person and of financial loss (s.116(3))
• Leave is to be given only where this is in the
interests of justice and the court must consider
the contents of the statement, the risk of
unfairness to a party if it is admitted or
excluded (and, in particular, the difficulty of
challenging it if the maker does not testify) and
the fact (where this is so) that a special
measures direction could be made in relation to
the maker (s.116(4)).
Section 116(5)
The effect of section 116(5) is that a
statutory condition is to be treated as not
satisfied if the relevant circumstances were
caused (either by the person seeking to
adduce the hearsay evidence or by a person
acting on his behalf, for the purpose of
preventing the maker giving oral evidence
(either at all or in relation to the subject
matter of the statement)
Anna witnesses a robbery. Shortly
afterwards, Anna tells Jane that the robber
was Cliff, a neighbour of Anna’s. By the
time of Cliff’s trial, Anna is too ill to testify.
The prosecution intend to rely on Anna’s
statement as I.D. evidence.
Which is/are true?
(i) The statement is a hearsay statement
(ii) The statement appears to be
admissible under CJA 2003 s.116
ANSWERS
(i) The statement is a hearsay
statement
(ii) The statement appears to be
admissible under CJA 2003 s.116
They are both true.
Sulla hears a shot and, on running around a
corner, sees a body on the ground, a man running
away and another man standing nearby. The man
standing nearby tells Sulla that the man running
away, who committed the murder, is Marius. The
man then leaves without giving Sulla his name.
The prosecution wish to call Sulla at the murder
trial of Marius to repeat the statement made to
him by the unknown man as I.D. evidence.
Which is/are true?
(i) The statement is a hearsay statement
(ii) The statement is clearly admissible under CJA
2003 s.116.
ANSWERS
(i) The statement is a hearsay
statement
(ii) The statement is clearly admissible
under CJA 2003 s.116.
(i) is true.
Julius witnesses a murder and makes a
statement to the police identifying Suki but is too
frightened to testify at the murder trial in
consequence of threats made to him by friends
of Suki. The prosecution wish to adduce Julius’
police statement as I.D. evidence.
Which is/are true?
(i) The statement is a hearsay statement.
(ii) The statement is clearly admissible under CJA
2003 s.116
(iii) The statement is admissible under CJA 2003
s.116 with the leave of the court.
ANSWERS
(i)
The statement is a hearsay
statement.
(ii) The statement is clearly
admissible under CJA 2003 s.116
(iii) The statement is admissible
under CJA 2003 s.116 with the
leave of the court.
(i) and (iii) and true.
Marcellus is charged with rape. Marcellus’
solicitor obtains a written statement from
Douglas, a magistrate, in which Douglas gives
Marcellus an alibi. In consequence of threats
made by Marcellus’ friends, Douglas then
leaves the country for an extended holiday
abroad. The defence wish to adduce Douglas’
written statement in evidence in support of
Marcellus’ alibi.
Which is/are true?
(i) The statement is a hearsay statement.
(ii) The statement is admissible under CJA 2003
s.116 with the leave of the court.
ANSWERS
(i) The statement is a hearsay
statement.
(ii) The statement is admissible under
CJA 2003 s.116 with the leave of the
court.
(i) is true.
Statement admissible under s.117 if:
•The statement is contained in a document;
•and; oral evidence would be admissible as evidence
of the matter stated;
•and; the document (or the part containing the
statement) was created or received by a person in
the course of a trade, business, profession,
occupation or as holder of office (paid or unpaid);
•and; the information contained in the statement was
supplied by a person who had/ may reasonably be
supposed to have had personal knowledge of the
matters dealt with (this may, but need not be, the
same person who created the document)
S.117 requirements continued
•and; any intermediary’s (if there were
any) through whom the information was
supplied from the person with personal
knowledge to the person who
created/received the document must
also have received the information in the
course of a trade, business etc
S. 117—when must a statutory condition
be satisfied?
•A statutory condition (i.e. either one of the s.116
statutory conditions seen above or the additional
s.117 condition that the supplier of information
cannot be expected to have any recollection of the
maters dealt with in the statement given the length of
time since he supplied it and all other circumstances)
must be satisfied in relation to the supplier of
information (i.e. proved to the appropriate standard of
proof by the party tendering the evidence) if the
statement was prepared for the purposes of
pending/contemplated criminal proceedings or for a
criminal investigation
S.117(6),(7) (power to direct that
hearsay is not admissible under s.117)
•S. 117(6) provides that a statement is not
admissible under section 117 if the court so directs
under s. 117(7)
•The court may so direct if satisfied that the
reliability of the statement for the purpose for
which it is tendered is doubtful in view of:
–its contents; or
–the source of the information it contains; or
–the way or circumstances in which the
information was supplied or received; or
–the way or circumstances in which the
document was created or received
Ravi witnesses a robbery. He tells PC Collins that he
recognised the robber as Don, Ravi’s cousin. PC
Collins asks Ravi to attend the police station on the
following day and PC Collins tells PC Jones what
Ravi told him. PC Jones makes a note of Ravi’s
statement in his notebook. On his way to the police
station on the following day, Ravi is killed in a road
traffic accident. The prosecution intend to rely upon
the statement in the notebook as I.D. evidence.
Which is/are true?
(i) It may be admissible under CJA 2003 s.117
(ii) The court could direct that it is not admissible
under CJA 2003 s.117
ANSWERS
(i) It may be admissible under CJA
2003 s.117
(ii) The court could direct that it is not
admissible under CJA 2003 s.117
They are both true.
Doug is charged with murder. The prosecution wish
to prove that he was in London on the day of the
murder and have obtained a printout from the
database of the hotel where he stayed. Residents fill
in a handwritten card on arrival and the desk clerk
then types the data into the database.
Which one is true?
[a] The printout may be admissible under CJA 2003
s.117
[b] The printout cannot be admissible under CJA
2003 s.117 unless one of the s.116 statutory
conditions (unavailability of supplier of information)
or the additional s.117 statutory condition is
satisfied
ANSWERS
[a] The printout may be admissible under CJA
2003 s.117
[b] The printout cannot be admissible under
CJA 2003 s.117 unless one of the s.116
statutory conditions (unavailability of
supplier of information) or the additional
s.117 statutory condition is satisfied
[a] is true
S.114(1)(d) (inclusionary discretion)
• S.114(1)(d) renders hearsay evidence
admissible where the court is satisfied that
its admission is in the interests of justice
• In deciding whether a statement should be
admitted under s.114(1)(d) the court must
consider the factors specified by s.114(2)
(see following two slides) plus any others
that are relevant
The s.114(2) factors
• the probative value of the statement (assuming it to
be true) in relation to a matter in issue/ its value for
the understanding of other evidence; and
• what other evidence has or can be given in relation
to the matter or evidence referred to above; and
• the importance of the matter or evidence referred to
above in the context of the case as a whole; and
• the circumstances in which the statement was made
• the reliability of the maker of the statement; and
• the reliability of the evidence of the making of the
statement; and
The s.114(2) factors continued
• whether (and if not, why not) oral evidence of
the matter stated can be given;
• the amount of difficulty involved in challenging
the statement; and
• the extent to which the difficulty involved in
challenging the statement would be likely to
prejudice the party facing that difficulty
W, a tourist, hears a shot and, on running around a
corner, sees a body on the ground, a man running
away and another man standing nearby. The man
standing nearby tells W that the man running away,
who committed the murder, is D. The man then
leaves without giving W his name. The prosecution
wish to call W at the murder trial of D to repeat the
statement made to him by the unknown man as I.D.
evidence.
Which is/are true?
(i) The statement is a hearsay statement.
(ii) The statement cannot be admissible because the
unknown man cannot be identified.
ANSWERS
(i) The statement is a hearsay
statement.
(ii) The statement cannot be
admissible because the unknown
man cannot be identified.
(i) is true.
Multiple Hearsay (s.121)
• A hearsay statement is only admissible to prove
that an earlier hearsay statement was made if:
– one of the statements is admissible under
section 117, section 119 or section 120 (the
latter two sections concern, respectively,
inconsistent and consistent statements and
are considered elsewhere); or
– the parties all agree; or
– the value of the evidence is so high (taking the
reliability of the statements into account) that
the interests of justice require the admission
of the later statement to prove the earlier
statement
Dan sees Jane set fire to Sue’s car. Dan tells Eric
what he saw and Eric tells Sid what Dan told him.
The prosecution wish to call Sid to repeat Eric’s
statement to him in order to prove Dan’s I.D. of
Jane. [None of Dan, Eric or Sid were acting in the
course of a trade, business, etc, and all three of
them are available to testify].
Which is/are true?
(i) The evidence may be admissible under CJA 2003
s.117.
(ii) The evidence may be admissible under CJA
2003 s.116.
(iii) The evidence, being multiple hearsay, must be
inadmissible
ANSWERS
(i) The evidence may be admissible
under CJA 2003 s.117.
(ii) The evidence may be admissible
under CJA 2003 s.116.
(iii) The evidence, being multiple
hearsay, must be inadmissible
They are all false.
Required Capability (s.123)
• A hearsay statement is not admissible under
ss.116, 119 or 120 if the maker did not have the
required capability at the time when he made it
• A hearsay statement is not admissible under s.117
if a person who supplied or received the
information or created or received the document
either did not have the required capability at the
relevant time or cannot be identified but cannot
reasonably be assumed to have had the required
capability at that time
• A person has the required capability if he is
capable of understanding questions about the
matters stated and of giving answers to such
questions which can be understood
Required Capability (s.123) (continued)
Where an issue arises under section 123:
• it must be determined in the absence of the jury;
• the court may receive expert evidence and
evidence from a person to whom the statement was
made; and
• The burden of proof (on the balance of
probabilities) lies on the party who seeks to adduce
the hearsay evidence
• Note: s.123 does not prevent the admission of
hearsay evidence under the s.114(1)(d)
inclusionary discretion, under a preserved common
law exception or under a statutory hearsay
exception other than those created by
ss.116,117,119 and 120
Ayesha, aged 3, sees Colin set fire to her local
community centre and tells Jim what she saw.
Ayesha is not capable of giving understandable
answers to questions put to her about the incident
and the trial judge has ruled that she is not
competent to testify in the proceedings. The
prosecution intend to call Jim to repeat Ayesha’s
statement as I.D. evidence.
Which is/are true?
(i) The statement may be admissible under CJA
2003 s.114(1)(d)
(ii) The statement may be admissible under CJA
2003 s.116
ANSWERS
(i)
The statement may be admissible
under CJA 2003 s.114(1)(d)
(ii) The statement may be admissible
under CJA 2003 s.116
(i) is true.
Credibility (s.124)
•Where the maker of a hearsay statement does not
give oral evidence in connection with its subject
matter:
–evidence which would have been relevant to his
credibility as a witness is admissible; and
–(with the leave of the court) evidence may be
given of (collateral) matters which could have been
put to him in cross-examination concerning his
credibility but of which the cross-examining party
could not have adduced evidence; and
–evidence of inconsistent statements made by him
is admissible to show that he contradicted himself
W sees a robbery. Several weeks later W tells her
friend P that the robber was D, W’s ex-boyfriend,
who left W for another woman. By the time when
P informs the police of W’s statement, W is living
abroad. W has several previous convictions for
offences of dishonesty and previously told
another friend, Z, that she did not recognise the
robber.
Which is/are true?
(i) The statement made to P may be admissible as
ID evidence under CJA 2003
(ii) The statement made to Z and W’s convictions
may be admissible for the defence
ANSWERS
(i) The statement made to P may be
admissible as ID evidence under
CJA 2003
(ii) The statement made to Z and W’s
convictions may be admissible for
the defence
They are both true
Stopping the case (s.125)
If the prosecution case against the
accused is wholly or partly based on a
statement not made in oral evidence in the
proceedings which is so unconvincing
that, considering its importance to the
case against him, the accused’s
conviction would be unsafe, the court
must either direct an acquittal or order a
retrial.
W sees a robbery. Several weeks later W tells her
friend P that the robber was D, W’s ex-boyfriend, who
left W for another woman. By the time when P informs
the police of W’s statement, W is living abroad. W has
several previous convictions for offences of
dishonesty and previously told another friend, Z, that
she did not recognise the robber.
Which is/are true?
(i)
The statement made to P may be admissible as
ID evidence under CJA 2003 s.116
(ii) If the prosecution case is solely based upon
W’s statement the judge may be required to
stop the case
ANSWERS
(i)
The statement made to P may be
admissible as ID evidence under CJA 2003
s.116
(ii) If the prosecution case is solely based
upon W’s statement the judge may be
required to stop the case
They are both true
Exclusionary Discretion (s.126)
• The court may refuse to admit hearsay
evidence if the case for excluding it (taking
account of the danger that admitting it would
result in undue waste of time) substantially
outweighs the case for admitting it (taking
into account its value)
• The court may also exclude prosecution
evidence in the exercise of its exclusionary
discretion under section 78 of PACE or at
common law.
D is charged with robbery. Several prosecution witnesses
identified D at an ID procedure. The prosecution also
wish to adduce the police statement of W, who died
before she could attend an ID procedure but whose
description of the offender bears some resemblance to
D’s appearance. When W made her statement, W was
taking medication which caused her to hallucinate.
Which is/are true?
(i)
(ii)
If W’s statement is admissible under CJA 2003
s.116 the judge could exclude it under CJA
2003 s.126
If W’s statement is admissible under CJA 2003
s.116 the judge could exclude it under s.78 PACE
ANSWERS
(i)
(ii)
If W’s statement is admissible under CJA
2003 s.116 the judge could exclude it
under CJA 2003 s.126
If W’s statement is admissible under CJA
2003 s.116 the judge could exclude it
under s.78 PACE
They are both true
Section 133
(Proof of Statements in documents)
•A statement in a document may be
proved in criminal proceedings (if the
statement is admissible in evidence)
either:
–by producing the document; or
–by producing a copy
authenticated in a way approved by
the court
Proof of statements in documents at
common law
•At common law, the court may permit a statement
in a document (if it is is admissible in evidence) to
be proved by secondary evidence of its contents
(i.e. by a copy or by oral evidence), though whether
the court so permits seems to depend upon the
weight of the secondary evidence, and the court
will probably not so permit if the document could be
produced without difficulty by the party tendering
the secondary evidence
•Thus, where s.133 does not apply (because neither
the original document nor a copy are available) it
may be possible to prove a statement in a document
at common law by calling a witness who read the
document to give oral evidence, though the weight
of the evidence may well be reduced
Horace, who manages a shop, is required to record
staff absences in a log. On Tuesday May 31 Horace
notes Eric’s absence in the log. Eric is charged with a
burglary which was committed on Tuesday May 31.
His alibi is that he was at work at the time when the
burglary was committed. Horace is available to give
evidence at the trial, but he can’t remember whether
Eric was at work on the relevant day. The log has been
lost and no copy exists but Eileen, Horace’s assistant,
remembers reading the relevant entry in the log.
True/false?
The evidence may be admissible under CJA 2003
s.117 even though no document exists
ANSWERS
The evidence may be admissible under
CJA 2003 s.117 even though no
document exists
(i) is true
The weight of hearsay evidence
• The weight (i.e. probative value) of hearsay
evidence may well be considerably less than
that of the direct oral evidence of a witness
who has been cross-examined, though this
will be a matter for the jury/magistrates to
assess in the circumstances of the case (e.g.
it may depend upon the nature of the hearsay
evidence).
• An appropriate direction to the jury will be
required
W sees a robbery. Several weeks later W tells her
friend P that the robber was D, W’s ex-boyfriend,
who left W for another woman. By the time when P
informs the police of W’s statement, W is living
abroad. W has several previous convictions for
offences of dishonesty and previously told another
friend, Z, that she did not recognise the robber.
Which is/are true?
(i) The statement appears to possess
considerable weight
(ii) The weight of the statement may be affected
by the convictions, the inconsistent statement
and W’s bias
ANSWERS
(i) The statement appears to possess
considerable weight
(ii) The weight of the statement may be
affected by the convictions, the
inconsistent statement and W’s bias
(ii) is true
CRIMINAL PROCEDURE RULES 2005
•CrimPR Part 34 imposes notice requirements where a
party wishes to adduce hearsay evidence under CJA
2003 s.114(1)(d), s.116, s.117 or s.121
•Prosecution must serve notice (in the prescribed
form) on court officer and parties within 14 days of
committal, of consent to preferment of a bill of
indictment, of service of notice of transfer (under s.4
CJA 1987 or s.53 CJA 1991) or (where the accused is
sent for trial under section 51 of the Crime and
Disorder Act 1998) of service of the documents
containing the evidence on which the charge is based
(Crown Court) or at the same time as disclosure under
s.3 of the CP&IA 1996 (Magistrates’ Courts).
CRIMINAL PROCEDURE RULES 2005
•Defence must serve notice (in the prescribed form)
on court officer and parties within 14 days of
prosecution disclosure under s.3 of the CP&IA1996
•A party who receives a notice of hearsay evidence
may give notice opposing it (to the other parties and
the court officer, in the prescribed form) within 14
days
•The court may dispense with the notice
requirement, may vary the form in which notice is to
be given and may shorten or extend time limits.
•A party may waive his right to receive notice.
S.132 CJA 2003 (Rules of Court)
Under s.132 it appears that, where a party fails to
comply with the hearsay notice requirements laid
down by the Criminal Procedure Rules:
• hearsay evidence is only admissible with the leave of
the court; and
•if the court does give leave appropriate inferences
may be drawn from the failure (though a person
cannot be convicted solely on such an inference); and
•the failure may be taken into account when the court
is exercising its powers in relation to costs.
In exercising these powers the court should consider
whether there is any justification for the failure.
Anna witnesses a robbery. Shortly afterwards, Anna
tells Jane that the robber was Cliff, a neighbour of
Anna’s. By the time of Cliff’s trial, Anna is too ill to
testify. The prosecution failed to serve notice as
required by CrimPR Part 35, but wish to rely upon
Anna’s hearsay evidence at Cliff’s trial.
Which is/are true?
(i)
(ii)
(iii)
The judge must admit the evidence
The court may draw an inference from the
failure
The failure may have costs implications
ANSWERS
(i)
(ii)
(iii)
The judge must admit the evidence
The court may draw an inference from
the failure
The failure may have costs implications
(ii) and (iii) are correct
S.9 CJA 1967
• A hearsay statement is admissible under s.9 if it:
– purports to be signed by its maker and
– contains a declaration to the effect that it is
true to the best of its maker’s knowledge and
belief and that he made it knowing that he
could be liable to prosecution if he wilfully
stated in it anything that he knew to be false or
did not believe to be true; and
– a copy was served on the parties before the
hearing; and
– none of the parties, within 7 days of receiving
it, served notice objecting to its being tendered
S.9 continued
• The notice requirements need not be satisfied if
the parties agree that the statement will be
tendered in evidence
• The party who serves notice may still
subsequently call the maker
• The court may still require the maker to give
evidence, either of its own motion or upon
application by a party
• The statement is not conclusive evidence of the
facts (though if it is disputed the party tendering it
may wish to apply for an adjournment to enable
him to call the maker)
D is charged with the theft of a silver teapot from a
shop. The prosecution serve the manager’ (M’s)
written statement on the defence in which M
identifies the teapot which he was shown by the
police as the one that was stolen from the shop. The
defence do not dispute that the teapot found in D’s
flat was the stolen teapot, D’s defence being that a
friend gave the teapot to D as a birthday present.
Which one is true?
[a] If the requirements of CJA 1967 s.9 are satisfied,
the prosecution will not need to call the manager
[b] The prosecution must call the manager because
the statement is a hearsay statement
ANSWERS
[a] If the requirements of CJA 1967 s.9 are
satisfied, the prosecution will not need to call
the manager
[b] The prosecution must call the manager
because the statement is a hearsay
statement
[a] is true
HUMAN RIGHTS
•Article 6(3)(d) gives the accused the right to
examine/have examined the witnesses against him
(which appears to include the maker of a hearsay
statement which was made for the purposes of the
proceedings and is admitted| in those proceedings
(e.g. a statement made to the police by a witness
which is admitted under a hearsay exception) )
•The existence of hearsay exceptions does not in
itself violate Article 6 as the nature of evidential
rules is a question for English Law
HUMAN RIGHTS CONTINUED
•Admitting hearsay evidence for the
prosecution under a hearsay exception may
give rise to a violation of Article 6 if, by
depriving the accused of the right to crossexamine a witness, it deprives him of a fair trial.
•Admitting hearsay evidence for the
prosecution under a hearsay exception will not
give rise to a violation of Article 6 if the
proceedings as a whole were fair.
HUMAN RIGHTS CONTINUED
•When deciding whether admitting hearsay
evidence for the prosecution might render a trial
unfair, relevant factors might include the following:
–whether the defence had an opportunity to
examine the maker of the hearsay statement on
an earlier occasion
–and the quality and reliability of the evidence
–and why the judge thought it necessary to
admit the evidence
–and any steps taken to counterbalance any
handicap to the accused resulting from
admitting the evidence
HUMAN RIGHTS CONTINUED
–and whether the defence had an opportunity to
adduce evidence controverting the hearsay
evidence
–and whether the defence had an opportunity to
adduce evidence challenging the maker’s
credibility
–and the nature of the judge’s direction to the
jury concerning the weight of the hearsay
evidence
–and whether the hearsay evidence was the only
evidence that the prosecution relied on in
relation to the relevant issue
W sees a robbery. Several weeks later W tells her
friend P that the robber was D, W’s ex-boyfriend,
who left W for another woman. By the time when P
informs the police of W’s statement, W is living
abroad. W has several previous convictions for
offences of dishonesty and previously told another
friend, Z, that she did not recognise the robber.
There is no other evidence against D
Which is/are true?
(i) If D is convicted this would definitely not violate
Article 6 of the Convention
(ii) The judge may be required to stop the trial or
may exercise his discretion so as to exclude the
statement
ANSWERS
(i) If D is convicted this would definitely not
violate Article 6 of the Convention
(ii) The judge may be required to stop the trial
or may exercise his discretion so as to
exclude the statement
(ii) is true