The Hearsay Provisions of the CJA 2003

1
The Hearsay Provisions of the CJA 2003

• 10 things to watch out for?

2
Introductory points

• Practitioners encouraged to treat all relevant
  hearsay as potentially admissible.
• Commencement
• Trials on or after 4th April 2005 - trials in
  which a jury (or the judge) is determining
  factual issues between the prosecution and
  defence H.

3
The New Hearsay

• Rule is reformed but recognisable
• Exceptions
• Statutory first hand hearsay
• Business documents
• Common law exceptions
• Safety valve to include hearsay
• Provisions in lieu of cross-examination
• General safeguards
• discretion where hearsay superfluous/unfair
• power to stop trial where evidence unconvincing
• notice
• (non-statutory) warnings.

4
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

5
Impact of CPR

• Some CPS areas were making applications for
  hearsay for all interviews under caution.
• Technically these are hearsay. They are
  admissible under s 76 of PACE and s 114(1)(a).
• New CPR r 34.1 ONLY make application where
  hearsay to be admitted under
• a) the interests of justice exception
  (s114(1)(d))
• (b) where the witness is unavailable to attend
• (c) the evidence is contained in a business or
  other document
• (d) the evidence is multiple hearsay

6
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay
• Convicting on hearsay alone?
• Safety valve to include
• Discretionary exclusion
• Confessions

7
Previous inconsistent

• Evidence of truth if
• Witness admits making inconsistent statement
• under section 3, 4 or 5 of the Criminal Procedure
  Act 1865
• or
• given in evidence under section 124(2)(c) (credit
  when missing witness)
• NB
• S 126 power to exclude superfluous
• s 122 on jury use of documents

8
Joyce and Joyce

• In the light of the new statutory provisions in
  relation to hearsay, it would have been an
  affront to the administration of justice in a
  trial based on the terrifying circumstances of
  the instant case if the jury had not been
  permitted to evaluate the quality of the
  witnesses oral evidence and to rely on their
  original statements.

9
Leach 2006 EWCA Crim 58

• V (14) claims D touched her sexually
• D claims only a hug
• V admits in cross exam that she first told her
  mum it was a hug
• CA - This is not a recent complaint under s120
• But is it s 119?

10
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

11
Previous consistent s.120

• Admissible as evidence of truth where
• rebut allegations of recent fabrication
• exhibited aide memoire
• W confirms earlier statement as true and
• previous identification of person/place
• fresh statement which W now does not/could not be
  expected to recall.
• It was evidence of recent complaint

12
Xhabri 2005

• Use of s 120 commended by CA
• CA read s 120(4) and (5) more restrictively than
  trial judge
• S 120 (7) applicable anyway, as was s 114(1)(d)
• Use of s 120 evidence is not incompatible with
  ECHR.

13
R v D 2005 EWCA Crim 3043

• Sexual assault on V.
• W testifies as to Vs complaint and distress
• CA emphasise that under s120, judge has greater
  obligation to draw discrepancies to jurys
  attention.

14
Memory refreshing s.139

• Test of contemporaneity removed.
• New test of whether witness recollection likely
  to have been significantly better when he made
  or verified the document/sound recording
  transcript.
• NB use as previous consistent statement in s
  120(4).

15
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

16
Identifying Hearsay

• 114 Admissibility of hearsay evidence
• (1) In criminal proceedings a statement not made
  in oral evidence in the proceedings is admissible
  as evidence of any matter stated if, but only
  if-

17
3 elements

• Statement of any kind
• any representation of fact or opinion made by a
  person by whatever means includes sketch,
  photofit or picture form
• Not made in the proceedings in court
• Relied on for the matter stated
• Ie its contents, the matter within it etc NOT the
  mere fact that it was made

18
Relied on for the matter stated

• R v Kelly (2005)
• D heard by witness to say
• that would be a good place to hide the knife
• Not hearsay not relied on for the truth of
  that statement

19
Still Hearsay ..

• Sparks v R (1964)
• It was a coloured boy
• Declarant is an incompetent child witness

20
Evidence from machines

• If no human input as with CCTV, machine
  counting bank notes etc, no hearsay
• If W uses word processor to store statement-
  hearsay when produced cannot launder through a
  machine
• If machine producing evidence but dependent on
  e.g. calibration data input by human s.129
  applies.

21
129. Representations other than by a person

• Where a representation of any fact
• is made otherwise than by a person, but
• depends for its accuracy on information supplied
  (directly or indirectly) by a person,
• that representation is not admissible in
  criminal proceedings as evidence of the fact
  unless it is proved that the information was
  accurate.

22
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

23
The Rule (2) removing implied assertions s 115

• (3) A matter stated is one to which this Chapter
  applies if (and only if) the purpose, or one of
  the purposes, of the person making the statement
  appears to the court to have been-
• (a) to cause another person to believe the
  matter, or

24
Implied assertions

• Identify the declarant
• Identify the statement made
• Consider why it is being relied on what is the
  matter stated within it that is relevant?
• Identify the likely purposes of the declarant in
  making that statement
• Is one of the purposes to communicate a matter?
• If so, this is hearsay.

25
No Longer Hearsay

• Kearley (1992)
• My usual, please, Chippie
• Spoken by unknown caller who thought he was
  talking to the accused)
• Purpose of caller was not to cause another to
  believe that K dealt drugs

26
Implied assertions

• The matter stated?
• What is the matter in the statement?
• Are we relying on that matter at trial?
• What is Xs purpose?
• X says, Kearley deals a good spliff. Id like
  one. One of purposes to cause hearer to believe
  that K deals drugs. Still hearsay.
• X says Ill have the usual purpose to ask for
  drugs. Not Xs purpose to cause hearer to
  believe K deal drugs.

27
Causing action not belief

• (3) A matter stated is one to which this Chapter
  applies if (and only if) the purpose, or one of
  the purposes, of the person making the statement
  appears to the court to have been-
• to cause another person to believe the matter, or
• (b) to cause another person to act or a machine
  to operate on the basis that the matter is as
  stated.

28
Singh (2006)

• Common law position as in Kearley has been
  abolished.
• The new approach to implied assertions operates
  whether W has intentionally provided an implied
  assertion or otherwise.
• The question is Was it one of Ws purposes to
  cause a belief.

29
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

30
The exceptions - 4 routes to admissibility

• s.114
• (1) if, but only if-
• (a) any provision of this Chapter or any other
  statutory provision makes it admissible,
• (b) any rule of law preserved by section 118
  makes it admissible,
• (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.

31
Automatic Admissibility s 116

• Automatic - no need for leave, provided that
• Relevant person identifiable (What is identity?)
• Relevant person competent (s.123)
• S.78 exclusion not applicable

32
Proving the absence criterion

• The party seeking to rely on the statement of the
  relevant person must establish his unavailability
  by admissible evidence Nkemayang.

33
s.116 Automatic Admissibility

• Applies to oral / documentary / other hearsay
• Relevant person absent
• Dead
• Unfit to attend as a witness
• Abroad/not practicable to secure
• Cannot be found

34
C and K

• reasonably practicable in s116 (2)(c)to be
  judged on the basis of the steps taken, or not
  taken, by the party seeking to call W.
• Court must also consider s 126 and s78 PACE
• Fairness depends, in part, on what efforts should
  reasonably be made to secure the attendance of
  the witness or, at least, to arrange a procedure
  whereby the contents of the statements can be
  clarified and challenged.

35
Absent through fear - admissible with leave
s116 (2)(e)

• Relevant person in fear (widely construed)
• Fear only of giving evidence?
• Fear of prosecution?

36
Robinson v Sutton Coldfield MC 2006 EWHC 307

• Fear of witness of attending court.
• JJ had regard to YJCEA and allowed statement to
  be read.
• CA reject defence appeal that should have
  considered whether secure transport for W might
  be available.

37
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

38
Sufficient safeguards?

• In non-fear cases, there is no leave requirement.
• RP must be identified (s.116)
• What does that mean?
• RP must be competent (s.123)
• RPs credit can be challenged (s.124)
• Is it enough to challenge the witness not the
  evidence
• A case based on unconvincing hearsay should be
  stopped (s.125/s.78).

39
Art 6 ECHR and Luca v Italy

• it may prove necessary in certain
  circumstances to refer to depositions made during
  the investigative stage (in particular, where a
  witness refuses to repeat his deposition in
  public owing to fears for his safety.).
• If the defendant has been given an adequate and
  proper opportunity to challenge the depositions,
  either when made or at a later stage, their
  admission in evidence will not in itself
  contravene Article 6.1 and 3(d).

40
Luca v Italy

• However, where the conviction is both solely or
  to a decisive degree based on depositions that
  have been made by a person whom the accused has
  had no opportunity to examine or to have
  examined, whether during the investigation or at
  the trial, the rights of the defence are
  restricted to an extent that is incompatible with
  the guarantees provided by Article 6

41
Sellick (2005)

• No fear case in Strasbourg
• Evidence must normally be produced at public
  hearing and as a general rule Art 6 requires D to
  be given opportunity to challenge
• BUT
• If W is identified, known to D and court sure W
  kept away by D, even sole evidence admissible
• If Court not sure D is cause of RPs absence,
  but high degree of probability, still no absolute
  rule against admitting

42
Sellick

• What if there is no evidence as to whether D was
  a cause of RPs absence?
• Can a conviction be based solely or decisively on
  hearsay evidence?
• To what extent does Article 6 guarantee a right
  to examine a witness rather than evidence?

43
Al Khawaja 2005 EWCA Crim 2697

• Where a sole witness to a crime had made a
  statement to be used in its prosecution and had
  died, there might be a strong public interest in
  the admission of the statement in evidence.
• That public interest could not be allowed to
  override the requirement that the defendant
  should have a fair trial,
• but
• Convention jurisprudence did not require the
  conclusion that in such circumstances the trial
  would be unfair.

44

• The provision in art 6(3)(d) that a person
  charged should be able to have the witnesses
  against him examined was one specific aspect of a
  fair trial, but if the opportunity was not
  provided, the question was whether the
  proceedings as a whole, including the way the
  evidence had been taken, were fair.
• The instant case was not one where the witness
  had absented himself, whether through fear or
  otherwise, or had required anonymity, or had
  exercised a right to keep silent. The reason was
  death, which had a finality which brought in
  considerations of its own.

45
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

46
The safety valve

• 114 Admissibility of hearsay evidence
• (d) the court is satisfied that it is in the
  interests of justice for it to be admissible.

47

• Probative value of statement (assuming it to be
  true) or value for understanding evidence?
• (b) What other evidence is available?
• (c) How important is evidence in context of the
  case?
• (d) In what circumstances was statement made?
• (e) Reliability of the maker?
• (f) Reliability of the evidence of making of
  statement?
• (g) Can oral evidence of issue be given? if not
  why not?
• (h) Difficulty involved in challenging the
  statement?
• The extent to which that difficulty would be
  likely to prejudice the party facing it.

48
R v T (2006) 26th Jan

• Trial judge must have regard to each of the nine
  factors
• There is no obligation to come to a conclusion
  and to express a conclusion on each of the nine
• CA anxious to avoid appeals?

49
Hearsay Dangers

• Insincerity
• Ambiguity
• Misperception
• Mis-recollection

50
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

51
New discretions

• Section 125 power to stop the case
• Duty to do so if
• Case depends significantly on hearsay
• Evidence so unconvincing that conviction would be
  unsafe

52
Joyce and Joyce

• s 125 was not to be regarded as requiring a
  higher standard than Galbraith, but it provided
  an additional safety valve obliging the judge to
  direct an acquittal where the statement was
  particularly unpersuasive.

53
Section 126

• The narrow view
• cases where hearsay is technically admissible
  under Part 11 but it would be an undue waste of
  time to do so.
• The provision would be seen as a managerial power
  supplementing s 78. A literal interpretation of
  s126(1)(b) supports this.
• Law Commission intended the narrow view.

54
Section 126

• The wider view (favoured in C and K (above)
• a general discretion against prosecution and
  defence to exclude any hearsay.
• Take account of the potential undue waste of
  time, but that is not the exclusive concern
• Many attractions, including preventing defence
  abuse of the automatic admissibility provisions
  in s 116

55
10 things

• CPR
• Inconsistent statements
• Consistent statements
• Identifying hearsay
• Implied assertions
• Absent witnesses whosay?
• Convicting on hearsay alone?
• Safety valve to admit
• Discretionary exclusion
• Confessions

56
Co-accuseds confessions s 76A

• Confession not admissible by prosecution under s
  76 becomes inadmissible for Co-D unless
• Not by oppression
• Not likely to be unreliable because of anything
  said or done
• Is this ECHR compliant? Why should D1 prove
  reliability of confession of D2 he is only
  seeking to exculpate himself.

57
Does safety valve admit co-Ds confession

• D1 and D2 interviewed.
• D2 makes statement which inculpates D1.
• Can Crown adduce D2s interview as against D1?
• Hearsay
• Safety valve
• Other challenges?