Anti-social behaviour orders: Hearsay evidence

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Use of hearsay and professional witness evidence

Hearsay and professional witness evidence allow for the identities of those too fearful to give evidence to be protected. This is especially vital as cases often involve anti-social behaviour in residential areas by local people and those targeted by the behaviour feel unable to come forward for fear of reprisals. Hearsay evidence cannot be excluded (at the request of defence lawyers) simply on the grounds that it is hearsay.

Moat Housing Group- South Ltd. v Harris & Anor (16 March 2005)

Moat Housing Group- South Ltd. v Harris & Anor [2005] EWCA Civ 287 (16 March 2005)

131. It is now well established that hearsay evidence is available on an application for an ASBO or the trial of a possession action: for this rule in relation to ASBOs see R (McCann) v Manchester Crown Court [2002] UKHL 39 at [35] -[36], and Solon South West Housing Association Ltd v James [2004] EWCA Civ 1847 at [14] - [41].

132. The admission of hearsay evidence in civil proceedings is governed by sections 1-7 of the Civil Evidence Act 1995 and CPR 33.1 - 33.5.

Section 4 (1) of the Act, in particular, provides that:

"(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following-
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."

CPR 33.2(1) provides that the inclusion of hearsay evidence in a witness statement provides adequate notice of a party's intention to rely on hearsay evidence at the trial. CPR 33.2(2) provides that where the hearsay evidence is contained in a witness statement of a person who is not being called to give oral evidence, the party intending to rely on the hearsay statement must, when he serves the witness statement,

"(a) inform the other parties that the witness is not being called to give oral evidence; and
(b) give the reason why a witness will not be called."
Hearsay evidence

Evidence of anti-social behaviour which occurred at any time after the commencement of section 1 Crime and Disorder Act 1998 may be taken into account when the court considers whether or not to grant an order on conviction under section 1C. The House of Lords judgment in the McCann case confirmed that hearsay evidence is admissible. Lord Steyn stated that:

:‘Having concluded that the proceedings in question are civil under domestic law and article 6, it follows that the machinery of the Civil Evidence Act 1995 and the Magistrates’Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 allow the introduction of such evidence under the first part of section 1.

:‘... use of the Civil Evidence Act 1995 and the Rules in cases under the first part of section 1 are not in any way incompatible with the Human Rights Act 1998.

:‘... hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).’ It is a matter for the judge or magistrate to decide what weight they attach to hearsay evidence.

(The above: Taken from paragraphs 35, 36 and 37 of Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea (on Appeal from a Divisional Court of the Queen’s Bench Division); R v Crown Court at Manchester ex parte McCann (FC) and Others (FC).)

Hearsay allows a police officer to provide a statement on behalf of a witness or witnesses who remain anonymous. Hearsay evidence must be relevant to the matters to be proved. It could include details such as dates, places, times, specific descriptions of actions, who was present and who said what. Hearsay can include evidence from the person taking the statement. The person giving the hearsay evidence may attest to the observable conditions of the witness, for example that the witness appeared upset, and may give evidence based on their own judgement of the situation. Where an applicant intends to rely on hearsay evidence in the county court, they must act in accordance with part 33 of the Civil Procedure Rules. Written notice must be given at least 21 days before the hearing to the other party and to the court.

Professional witnesses

Professional witnesses can be called to give their opinions as to matters within their expertise and can give evidence about their assessments of the respondent or his/her behaviour. Examples of witnesses who may be called as professional witnesses include council officials, health visitors, railway staff, teachers, doctors and police officers. Care should be taken to ensure that a professional witness does not inadvertently enable vulnerable or intimidated witnesses to be identified, for example from their home address.

Vulnerable and intimidated witnesses

Witnesses who are willing to testify in court provide the best form of evidence and, where possible, should be encouraged to come forward. The new provisions introduced in the Serious Organised Crime and Police Act 2005 make it easier for victims of anti-social behaviour to attend court and give evidence in person. The Act permits the ‘special measures’ that were formerly reserved for criminal hearings to be used in anti-social behaviour cases. This will enable witnesses who wish to give direct evidence to do so in private, from behind a screen or by video link. Vulnerable witnesses are all witnesses aged under 17 years or whose quality of evidence is likely to be diminished because they have a mental disorder or learning disability or have a physical disability or physical disorder. Intimidated witnesses are witnesses whose quality of evidence is likely to be diminished because they are in fear or distress about testifying. It is for the court to decide whether the quality of a witness’s evidence is likely to be diminished.

Witness development and support

The principal purpose of an order is to protect those who directly experience antisocial behaviour. The protection provided should include, where necessary, those who are personally targeted by perpetrators, other witnesses who see this happen and the wider local community. It follows that engaging, developing and supporting these individuals and groups of people must be a primary concern for any agency managing a case and seeking to use these orders. Without the initial complaint of the witness, the agency will have no detailed knowledge of the problem. Without their continuing engagement, there will be no evidence on which to build a case. Local strategies to promote the use of orders should have the interests of the witnesses and the community at their centre. The welfare and safety of residents whose complaints form the basis of any action must at every stage of the process be the first consideration. The use of hearsay evidence and professional witnesses is one way of achieving this (see section on hearsay evidence above). While professional witnesses may have a duty to engage, lay witnesses can only be expected to do so if they can see a point in doing it; if the agency is credible and authoritative; if the case work is visibly focused on the interests of the witnesses; if the order protects them and stops the anti-social behaviour quickly and effectively; and if the case manager offers them well-informed, practical personal support throughout the period of evidence collection, court proceedings and afterwards, as necessary. The experience of witnesses must be given value and significance by case managers. The status and importance of witnesses in case development must be made clear. They should be provided, as appropriate, with:

  • a simple method of capturing information – diaries, video/audio recording facilities and translation services;
  • information on services and procedures – about the way witness support services work, service access points, telephone numbers and the name of the case manager working on the case;
  • an active and respected role in developing the case – the case strategy should reflect their needs, particularly for reassurance about their safety, and they should have control over any information they provide, including agreeing the form in which it will be provided to the defence;
  • protection for themselves and their family – security for door and window access, emergency contact equipment, panic alarms and mobile phones may all be appropriate in particularly serious cases;
  • regular contact from the case manager, including telephone contact as agreed with the witness (daily, weekly, etc);
  • support for any court appearance – a briefing on court procedures and what they should expect, the presence with them in court of the case manager, transport to and from court (if necessary) and a secure space separate from perpetrators in which they can wait to be called; and
  • support after a court appearance – speedy delivery of information, copies of any orders which have been made and an explanation of the implications of the court decision. Each key witness should also be engaged in a face-to-face meeting with the agencies, including those who do not wish to give a statement or attend court.

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