THE ADMISSION OF HEARSAY EVIDENCE UNDER SECTIONS 116

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) (ii) The statement may be admissible under CJA 2003 s. 114(1)(d) 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) If W’s statement is admissible under CJA 2003 s. 116 the judge could exclude it under CJA 2003 s. 126 (ii) If W’s statement is admissible under CJA 2003 s. 116 the judge could exclude it under s. 78 PACE

ANSWERS (i) If W’s statement is admissible under CJA 2003 s. 116 the judge could exclude it under CJA 2003 s. 126 (ii) 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 • Crim. PR 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&IA 1996 • 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 whethere 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 Crim. PR Part 35, but wish to rely upon Anna’s hearsay evidence at Cliff’s trial. Which is/are true? (i) (iii) The judge must admit the evidence The court may draw an inference from the failure The failure may have costs implications

ANSWERS (i) (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 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 cross-examine 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