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INTRODUCTION This fact
sheet describes the complicated area of the law of evidence relating to hearsay,
in criminal cases. DEFINITIONS Hearsay
evidence has been given many definitions as it has been interpreted and
reinterpreted by the courts. A
useful starting point is the definition found in the Civil Evidence Act 1995
section 1, which, although it applies to hearsay in civil cases, is a clear
definition of hearsay based on common law cases, which form the basis of how
hearsay evidence is treated in criminal cases; “Hearsay
evidence can be thought of as:- any statement made otherwise than by a person
while giving oral evidence in the proceedings, which is tendered as evidence of
the matters stated.” For the
purposes of the hearsay rules, “statement” applies equally to those made
orally, to those made by a gesture (e.g., nodding of a head) and those in
documents. Examples of
hearsay statements in documents can be found in witness statements read out by
solicitors etc. in court; public
analyst certificates, and records from businesses, e.g., temperature monitoring
records. Case law
has set out guidelines as to when a statement is or isn’t hearsay, and often
lengthy legal argument takes place to determine the exact status of the
statement (the evidence) in order to determine its admissibility. Some
examples of statements held not to be
hearsay include those repeated by others to show only that a statement in
question was actually made (Subramanium
v PP) or that somebody in question can speak, for example. Statements
that have been held to be hearsay
include documents from a factory, assembly line (Myers v DPP); somebody
nodding in agreement to a question (where their throat had been cut); and phone
calls to a drug dealer’s house asking for the usual supply of drugs.
The cases have shown that statements do not have to be blatant examples
but could be statements that on the face of it are not repeated to prove the
facts stated, but on reflection imply that the facts suggested are true.
However, even the cases dealing with these so-called “implied
assertions” are unclear and often conflicting. The message is; if a statement is made about something
someone else did, or said etc., there will probably be an argument in court as
to whether that statement is hearsay! THE GENERAL RULE The general
rule at common law is that hearsay evidence is inadmissible unless
it falls within a common law or statutory exception. The
reasoning behind this exclusionary rule is that out of court statements made by
others cannot be tested in court by cross-examination to see if they are true or
not, and that the court has not got an opportunity to see the witness consider
his/her demeanour etc. THE COMMON LAW EXCEPTIONS Informal admissions : e.g.,
those made by a party to the proceedings on a previous occasion.
This area of common law has now been covered by the law regarding
confessions (s.76 Police and Criminal
Evidence Act 1984). Statements made in public documents: e.g.,
documents concerning a public matter and made by a public officer under a duty
to inquire into, and record results of the inquiry, such as a Register of Births
and Deaths, or an Office of Fair Trading return etc. Works of reference: e.g.,
maps, historical texts, etc. Statements made by certain deceased people: e.g., those made by someone against their interest, and those
made by someone during their course of duty, e.g., a policeman and dying
declarations (but only where the statement is complete, and not just “It was
Bob that ........”). Res Gestae statements: These
are statements made in the heat of the moment, where it is assumed the person
making them has not had time to concoct an untrue statement.
Statements of someone’s intention to do something may also be
admissible evidence that they did actually do that thing, although the
authorities on this question conflict. Statements made by mechanical devices: e.g.,
where there has been no human intervention or input, such as with automatic
calculations and printouts made by breathalysers etc. STATUTORY
EXCEPTIONS Criminal
Justice Act 1988 (CJA) ss. 23 and 24 Section 23 - First Hand Documentary Statements - This section
provides that a statement made by a person in a document shall be admissible in
criminal proceedings as evidence of any fact stated of which oral evidence would
be admissible, but only where the maker of the statement is unable to attend court (i.e., if they are dead, or outside the UK,
or unfit to give evidence, or can’t be found) or where they are not giving
evidence out of fear.
(This may be an employee who is not giving evidence out of fear of losing
his/her job). The
statement must be “first-hand hearsay”, i.e., a statement made by a person
who directly perceived the facts of which the evidence is being given. Where a
statement satisfies the above, there is another hurdle for admissibility, which
is the court’s ability to refuse its admittance where it is in the interests
of justice to do so (s.25(1)). In deciding whether it is in the interests of justice to
refuse a statement’s admittance, the court may consider the risk of unfairness
to the accused by either admitting it or not, and whether he/she is likely to be
able to contradict it. Similarly,
where the statement was prepared for the purpose of a criminal investigation, or
for criminal proceedings (e.g., a S.9 witness statement taken by us during an
accident investigation etc.) the statement is only admissible if the court
decides that it is in the interests of justice to admit it (s.26). The effect
of these sections is that where first hand hearsay statements are made in
documents, and the maker is unable to give oral evidence, the statement will
be admitted unless it is not in the interests of justice to do so, but if the
statement was made during a criminal investigation etc. it will not be admitted unless
it is in the interests of justice to do so. Section 24 - Business Documents - This section provides for
documents prepared in the course of a business, profession or occupation to be
admissible, despite them being hearsay statements. Under this
section, statements in documents will be admissible as evidence of any fact of
which direct oral evidence would be admissible if the document was created
or received in the course of a trade, business, profession or other
occupation, or by a person holding an office and where the information was supplied by a person who had personal
knowledge of the matters dealt with. Once a
business document falls within s.24, it is generally admissible without the need
to show that the witness is unavailable to attend court etc.
However, if the document was prepared for a criminal investigation etc.,
then the document will not be admissible unless the witness who made the document (who had
personal knowledge of the facts stated) is unable to attend court, or can’t be
expected to remember the matters stated (e.g., where they are of a routine
nature). Sections 25
and 26 also apply to business documents, and so the presumption is that a S.24
statement would be admitted unless it
was not in the interests of justice
to do so, but if it was prepared in the course of a criminal investigation etc.
it would not be admitted unless it
was in the interests of justice to do so. Examples of
S.24 statements could include receipts, delivery notes or statements to the
police etc. It should also be noted
that a “document” can include a tape, film, disc etc. as well as a written
document. CJA 1988 s.30 - Expert Reports The
provisions of ss. 23-26 above do not apply to expert reports, i.e., those
written by a person dealing with matters on which they are or were qualified to
give expert evidence. As a
special exception to the hearsay rule, an expert report can be admitted in
evidence without the expert who made the report giving oral evidence, provided
that the court gives leave for this to happen. The
decision to give leave will turn on the contents of the report; the reasons why
the expert cannot give evidence; the risk of unfairness to the accused from
his/her inability to cross-examine the expert etc. The rules
for crown court cases state that expert reports should be disclosed to the other
side as soon as practicable after committal of the accused, and recent changes
to the rules regarding prior disclosure may also affect the likelihood of a
court giving leave to admit an expert report where disclosure rules have not
been complied with. Computer Records Admissibility - A computer record will be hearsay if it is stating information fed in by a human
(e.g., a word processed document). However,
it could be a “business record” within the meaning of section 24 CJA 1988
(above) and be admissible (subject to ss. 25 and 26). A computer
record will not be hearsay if it is
of a computer made calculation. Such
a document is real evidence. Police and Criminal Evidence Act 1984 (PACE) S.69 This
section provides that computer records may only be admissible (whether they are
hearsay or not) where there are no reasonable grounds for believing that the
statement is inaccurate because the computer has not been used correctly, and
that the computer was operating properly. The effect
of S.69 is that any party wishing to rely on computer evidence (e.g., by oral
evidence of an operator, or by a certificate showing reliability of the computer
signed by a responsible person), must prove that the computer was working and
being used properly. REFERENCES Criminal
Justice Act 1988 Myers v
Director of Public Prosecutions (1965) AC 1001, HL Police and
Criminal Evidence Act 1984 Subramanium v Public Prosecutor (1956)
1 WLR 965
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