Hearsay evidence

From CrimeLine from Andrew Keogh

Jump to: navigation, search

See also:


Chapter 2 Criminal Justice Act 2003 makes changes to the rules of evidence by reforming the law relating to the admissibility of hearsay evidence in criminal proceedings.
The common law rule against the admission of hearsay evidence is generally accepted as meaning that 'an assertion other than one made by a person while giving oral evidence in the proceedings was inadmissible as evidence of any fact or opinion asserted'. This meant that prior to the implementation of Chapter 2 Criminal Justice Act 2003 only a statement given by a witness orally in court proceedings was admissible as evidence of the facts as they represented them. The main implication of this rule was that witnesses had to give oral evidence in court from first-hand knowledge, and could not repeat what other people had told them. For example:
  • Written records were inadmissible evidence of the matters they contain;
  • Witnesses had to give oral evidence and a written statement cannot be a substitute for their personal appearance in the witness box;
  • Witnesses had to give evidence from first hand knowledge and may not repeat what other people have told them; and
  • Previous out of court oral statements made by the witness themselves are inadmissible evidence of the matters they contain.
There were several exceptions to this rule, some of which are found in common law and some in statute. Both the common law rule and the way in which the exceptions operate, however, have been the subject of considerable criticism.
This area of the law was the subject of a Law Commission Report Evidence in Criminal Proceedings: Hearsay and Related Topics (Report No 245) in 1997, which included 50 recommendations for reform and incorporated a draft Bill. This area of law was again considered by Sir Robin Auld as part of his Review. Sir Robin Auld concluded that we should move away from the strict rule against the admission of hearsay evidence in criminal proceedings, to a more flexible position where we admit such evidence and instead trust fact-finders to assess the weight of the evidence.
The provisions in Chapter 2 of Part 11 are intended, so far as necessary, to codify the law relating to the admissibility of out of court statements in criminal proceedings. They aim to simplify the law and to provide greater certainty as to the circumstances when such evidence will be admitted. The main provisions (in Sections 114 and 115) remove the old common law rule against the admission of hearsay evidence and provide that such evidence will be admissible (on behalf of the prosecution and defence) provided certain safeguards are met.
Chapter 2 also provides the court with an additional statutory discretion to allow an out of court statement to be admitted as evidence where it would be in the interests of justice to do so. In addition, witness's previous statements will be more widely admissible at trial (as proof of the facts contained within). Chapter 3 provides that certain witnesses in serious cases may use their video recorded statements in place of their main evidence.


Contents

Hearsay application forms/procedure

Notice of intention to introduce hearsay evidence under section 114, Criminal Justice Act 2003 (Criminal Procedure Rules, rr 34.2, 68.20(1))

Notice of opposition to the introduction of hearsay evidence under section 114 Criminal Justice Act 2003 (Criminal Procedure Rules, rr 34.3, 34.5, 68.20(1))

Criminal Procedure Rules: Part 34: Hearsay Evidence

Criminal Procedure Rules Part 68.20: Procedure for the admission of hearsay evidence

Definition of hearsay evidence

The 2003 Act provides that a statement not made in oral evidence in the proceedings is admissible in evidence of any matter stated only in circumstances provided for by the 2003 Act – Section 114

A 'statement' is defined as any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photo fit or other pictorial form. A 'matter stated' is one where the purpose or one of the purposes of the person making the statement appears to have been to cause another person to believe the matter or to cause another person to act or a machine to operate on the basis that the matter is as stated – Section 115.

The effect of this definition is to enable evidence to be admitted of 'implied assertions'. This reverses the decision made in R v Kearley (1992) 2 AC 228]. was the case where police officers had been at the home of the defendant and whilst there had answered telephone calls and personal calls from people asking about drugs that the defendant had for sale. The callers were not called as witnesses. The prosecution wished to adduce the evidence to prove that the intended recipient of the calls was a dealer in drugs. The House of Lords decided that, as evidence of the fact that the defendant dealt in drugs, the caller's words were hearsay and thus inadmissible. It now follows that the callers' words would not fall within the definition of being a 'matter stated' because the purpose of the call was not to cause another person to believe that the recipient of the call was a drug dealer but simply to request drugs.

The onus will be on a party to prove that the statement was not intended to cause another to believe the matter if the statement is not to be treated as hearsay. The burden on the prosecution will be beyond reasonable doubt and the burden on the defence the balance of probabilities.

CHAPTER 2 HEARSAY EVIDENCE

Chapter 2 makes further changes to the rules of evidence by reforming the law relating to the admissibility of hearsay evidence in criminal proceedings.

The common law rule against the admission of hearsay evidence is generally accepted as meaning that 'an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted'. This means that only a statement given by a witness orally in court proceedings was admissible as evidence of the facts as they represent them. The main implication of this rule is that witnesses must give oral evidence in court from first-hand knowledge, and may not repeat what other people have told them. For example:

  • Written records were inadmissible evidence of the matters they contain;
  • Witnesses had to give oral evidence and a written statement cannot be a substitute for their personal appearance in the witness box;
  • Witnesses had to give evidence from first hand knowledge and may not repeat what other people have told them; and
  • Previous out of court oral statements made by the witness themselves are inadmissible evidence of the matters they contain.

There wer several exceptions to this rule, some of which are found in common law and some in statute. Both the common law rule and the way in which the exceptions operate, however, have been the subject of considerable criticism.

This area of the law was the subject of a Law Commission Report Evidence in Criminal Proceedings: Hearsay and Related Topics (Report No 245) in 1997, which included 50 recommendations for reform and incorporated a draft Bill. This area of law was again considered by Sir Robin Auld as part of his Review. Sir Robin Auld concluded that we should move away from the strict rule against the admission of hearsay evidence in criminal proceedings, to a more flexible position where we admit such evidence and instead trust fact-finders to assess the weight of the evidence.

The provisions in Chapter 2 of Part 11 are intended, so far as necessary, to codify the law relating to the admissibility of out of court statements in criminal proceedings. They aim to simplify the law and to provide greater certainty as to the circumstances when such evidence will be admitted. The main provisions (in Sections 114 and 115) remove the old common law rule against the admission of hearsay evidence and provide that such evidence will be admissible (on behalf of the prosecution and defence) provided certain safeguards are met.

Chapter 2 also provides the court with an additional statutory discretion to allow an out of court statement to be admitted as evidence where it would be in the interests of justice to do so. In addition, witness's previous statements will be more widely admissible at trial (as proof of the facts contained within). Chapter 3 provides that certain witnesses in serious cases may use their video recorded statements in place of their main evidence.

Hearsay: main provisions

Section 114: Admissibility of hearsay evidence

Section 114 Subsections (1)-(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it. For example, if B was charged with robbery of a jewellers, the prosecution might want A to testify that B told her that he was "outside the jewellers at midday on Monday" in order to prove that B was outside the jewellers at the relevant time. As these subsections remove the common law rule against the admission of such hearsay evidence, this out-of court statement will be admissible in A's testimony, provided it comes under one of the following heads:

(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.

Y, R v [2008] EWCA Crim 10 (25 January 2008) A ruling relating to the admission of hearsay evidence under s114(d), whilst properly labelled an evidentiary ruling, may also come within the type of rulings that could be appealed by the prosecution under section 58 Criminal Justice Act 2003. The ruling in this case related to a hearsay statement implicating the defendant, made by a co-defendant who had pleaded guilty to the charge.

Before the court can grant leave to admit such a statement (under the fourth head above and found in subsection (1)(d)), it must be satisfied that it is in the interests of justice to admit the evidence. The intention, therefore, is that the court should be able to admit an out-of-court statement which does not fall within any of the other categories of admissibility, where it is cogent and reliable.

Subsection (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

The list is intended to focus attention on whether the circumstances surrounding the making of the out of court statement indicate that it can be treated as reliable enough to admit it as evidence, despite the fact that it will not be subject to cross-examination.

Subsection (3) provides that out of court statements may still be excluded even if they fulfil the requirements in this Chapter. For example, confessions must meet the additional requirements of sections 76 and 78 of the Police and Criminal Evidence Act 1984 before admission.

Times Law Report R v Y: “…the residual power to admit hearsay under section 114(1)(d), if the interests of justice genuinely required it, prevailed over the general common law rule that hearsay was inadmissible, and thus it prevailed over the particular common law rule that hearsay contained in a confession was inadmissible except against its maker….”

Pulley, R. v (25 January 2008)

Pulley, R. v [2008] EWCA Crim 260 (25 January 2008) The appellant was convicted of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. The prosecution witness/victim died prior to trial. The point at issue was the admission into evidence of statements made by the victim of the alleged assault. Held: The admission of the statements in this case, in a situation in which the maker of the statements could not be cross-examined, did in the circumstances deprive the appellant of a fair trial. We have particular regard to section 114(2)(e), Criminal Justice Act 2003 to which we have referred. Of the other factors stated, some favour admission, others are neutral. But there could not be a fair trial in this case, having regard to the very serious doubts about the reliability of the statement concerned, without the maker of the statement being available for cross-examination. Appeal allowed.

Section 115: Statements and matters stated

Section 115 defines the type of statements which will be covered by Chapter 2. Its purpose is to overturn the ruling in R v Kearley (1992) 2 AC 228]. that "implied assertions" are covered by the hearsay rule and therefore prima facie inadmissible. Under subsection (3), a statement is one to which this Chapter applies if it is the purpose of the person making the statement to:

  • cause the hearer to believe that the matter stated is true or to act on the basis that it is true; or
  • cause a machine to operate on the basis that the matter is as stated.

Section 115 therefore changes the common law position and will not prevent the admission of such implied assertions on the basis of the hearsay rule. Equally, where the assertion relates to a failure to record an event, sometimes known as negative hearsay, it will not be covered by Chapter 2 if it was not the purpose of the person who failed to record the event to cause anyone to believe that the event did not occur.

Subsection (2) preserves the present position whereby statements which are not based on human input fall outside the ambit of the hearsay rule. Tapes, films or photographs which directly record the commission of an offence and documents produced by machines which automatically record a process or event or perform calculations will not therefore be covered by Chapter 2.

[In R v Kearley Evidence of 10 or so requests for drugs made at the defendant's house by callers on the telephone and in person was held, by a narrow majority, to be inadmissible hearsay, when tendered to prove that he was dealing in drugs. Such evidence—asking for Kearley and requesting drugs—was said to have contained what is known to lawyers as "implied assertions", adduced to show that Kearley was a drug dealer. Kearley was not present when the requests for dugs were made. The HL ruled that the statements of the potential customers was not evidence of Kearley’s intention to supply drugs and was inadmissible hearsay]

Principal categories of admissibility

Section 116: Cases where a witness is unavailable

Section 116 sets out a series of categories under which first-hand hearsay evidence, whether oral or documentary, will be admissible, provided that the witness is unavailable to testify for a specified reason. The new provisions will be available to the prosecution and the defence.

A statement will be admissible under this section (subject to the additional conditions explained below) if the person who made it is:

  • Dead (subsection (2)(a));
  • Unfit because of bodily or mental condition (subsection (2)(b));
  • Absent abroad (subsection (2)(c));
  • Disappeared (subsection (2)(d)); or
  • In fear (subsection (2)(e)).

Subsections (2)(e) and (4) make specific provision for the admissibility, with leave of the court, of statements of witnesses who are too frightened to testify (or to continue testifying) provided the interests of justice do not dictate otherwise. In considering the interests of justice, the court should have regard to what was said in the statement; any risk of unfairness to other parties in the case; to the fact that special measures directions may be made in relation to a witness under Part II of the Youth Justice and Criminal Evidence Act 1999; and to any other relevant circumstances (subsection (4)). Subsection (3) provides that "fear" must be widely construed.

There are a number of other conditions which apply to the admissibility of evidence under Section 116. A statement can only be adduced as truth of any matter stated if:

  • the witness's oral evidence would have been admissible itself (subsection (1)(a)); and
  • the person who made the statement is identified to the court's satisfaction (subsection (1)(b)). This will enable the opposing party to challenge the absent witness's credibility under section 124.

Additionally, even if all the relevant conditions mentioned above are satisfied, the evidence will not be allowed if a party, or someone acting on his behalf, causes the unavailability of the declarant (subsection (5)). This is intended to focus attention on cases where a party acts with the intention of preventing a witness from giving evidence. It is up to the party opposing admission to prove this to the court.

Section 117: Business and other documents

Section 117 provides for the admissibility of statements in documentary records provided certain conditions are met. These conditions are (subsection (2)):

  • the document was created or received by a person in the course of a trade, business, profession or as the holder of a paid or unpaid office; and
  • the person who supplied the information in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the statement; and
  • each person through whom the information was supplied received the information in the course of a trade, business, profession or other occupation or as the holder of a paid or unpaid office.

Subsection (2) therefore reflects the position relating to business and other documents in section 24 (1)(c)(ii) and section 24(2) of the Criminal Justice Act 1988, which was being repealed. However, in the case of documents prepared for the purpose of criminal investigations or proceedings, the statement will only be admissible if the supplier of the information is unavailable or cannot reasonably be expected to recall any of the matters dealt with in the statement.

Even if a statement in a documentary record meets the conditions as set out in this Section, the evidence will not be allowed if it is considered unreliable. Subsections (6) and (7) permit the court to direct that the statement shall not be admissible where there is reason to doubt its reliability on the basis of its contents, source of information, mode of supply and circumstances of creation or reception. CPS Cases involving business and other documents

Section 118: Preservation of common law categories of admissibility

Section 118 preserves a number of common law exceptions to the old rule against the admission of hearsay evidence. The preservation of these rules means that in the specified circumstances, an out of court statement will be admissible as evidence of any matters stated in it. Many of these rules were also preserved under the corresponding civil evidence provisions in section 7 of the Civil Evidence Act 1995. The common law rules preserved in paragraphs (1) to (8) are as follows:

  • 'Public information' will be admissible. This includes published works; public documents; records of certain courts, treaties, Crown grants, pardons and commissions; evidence relating to a person's age or date of birth;
  • 'Reputation as to character' will be admissible as evidence of a person's good or bad character;
  • 'Reputation or family tradition' will be admissible as evidence to prove or disprove pedigree or the existence of marriage; a public or general right; or the identity of a person or thing.
  • 'Res gestae' will be admissible (this rule is explained below);
  • 'Confessions' will be admissible as long as they fulfil the requirements of sections 76, 76A and section 78 of the Police and Criminal Evidence Act 1984;
  • 'Admissions by agents' will be admissible against the defendant as evidence of any fact stated.
  • The rule of 'common enterprise' is preserved. This means that a statement made by a party to a common enterprise will be admissible against another party to the enterprise as evidence of any matter stated. For example, if it is independently proved that A and B are involved in a joint enterprise to rob a jewellers', any incriminating statements made by A will also be admissible against B.
  • The rule of 'expert evidence' is preserved. This permits an expert to give evidence of any relevant matter which forms part of his professional expertise (although not acquired through personal experience) and to draw upon technical information widely used by members of the expert's profession.

Paragraph (4) preserves the common law rule known as "res gestae". One justification for this exception is that reported words which are very closely connected to a relevant event are reliable accounts and should therefore be admissible in certain circumstances. Such statement may be admitted if one of the following conditions is met:

  • the statement is made by a person who was so emotionally overpowered by an event that the possibility that he was lying can be disregarded;
  • the statement accompanied an act which can properly be evaluated as evidence only if considered together with the statement. For example, if the act doesn't make sense without the statement; or
  • the statement relates to a physical sensation or mental state, such as an intention or emotion.

R Johnson, Court of Appeal, 11 July 2007. A plea of guilty and a written basis for that plea was admissible at the behest of a co-defendant (s76A Police and Criminal Evidence Act 1984).

Civil partnerships

Section 118(1) of the Criminal Justice Act 2003 as amended by Section 84 Civil Partnership Act 2004

Subsection (1) of this section provides that enactments or rules of law applying to the giving of evidence by a spouse will apply also to the giving of evidence by a civil partner. However, subsection (2) sets out that the general provision in subsection (1) is subject to any specific amendment made by or under the Act which relates to the giving of evidence by a civil partner. This takes account of the fact that in some instances it is more appropriate to amend specific provisions in other enactments or rules. A number of the amendments made by Schedule 27 relate specifically to the giving of evidence by a civil partner. Subsection (5) provides that any rule of law which makes evidence of family tradition admissible to prove or disprove the existence of a marriage is to apply in a similar way in order to prove or disprove the existence of a civil partnership.

Section 119: Inconsistent statements

Section 119 clarifies the relationship between hearsay evidence and previous inconsistent statements. It provides that if a witness admits that he has made a previous inconsistent statement or it has been proved that he made such an inconsistent statement, it is not only evidence which undermines his 'credibility' (as someone who makes inconsistent statements) but it is also evidence of the truth of its contents. A previous inconsistent statement may be proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865

Subsection (2) envisages the following type of situation. A makes a statement to the police that she saw B 'outside the jewellers' at midday on Monday'. A does not testify at trial but her statement is admitted under Section 116. As explained below, Section 124 provides that evidence can be admitted in this type of situation in relation to the credibility of A. Subsection (2)(c) of Section 124 provides that evidence can be admitted to prove that A had made another statement inconsistent with this statement (for example, A had said earlier that she did not see B on Monday at all). Section 119(2) provides that if there is such an inconsistent statement, it not only goes to the credibility of A, but it is also admissible as to the truth of its contents (that A did not see B on Monday).

Billingham, R. v [2009] EWCA Crim 19 (23 January 2009) Times law report While the present Judicial Studies Board direction in respect of previous inconsistent statements required the jury to be sure that a previous statement exculpatory of a defendant was true, it was sufficient for the jury to conclude that it might be true.

Section 120: Other previous statements by witnesses

Section 120 makes other previous statements admissible as evidence of the truth of their contents (not merely to bolster the credibility of the witness's oral evidence) in the following circumstances:

  • Subsection (2) applies to statements which are admitted to rebut a suggestion that the witness's oral evidence is untrue;
  • Subsection (3) applies to the situation where a witness is "refreshing his memory" from a written document. If he is cross-examined on the document and it is received in evidence, the statement will be evidence of any matter contained within it;
  • Subsections (4) - (7) provide that a previous statement will be admissible as evidence of the facts contained within it provided the witness states that he made the statement and believes it to be true and one of the following conditions is met:
  • The statement describes or identifies a person, place or thing (which includes objects such as a car registration number) ; or
  • The statement was made when the incident was fresh in the witness's memory and he cannot reasonably be expected to remember the matters stated. The intention is that where a witness has to rely on another person, or a document, or both to fill in details which he or she can no longer remember, this fact should go to the weight of the evidence, but should not make it inadmissible; or
  • The statement consists of a complaint by a victim of the alleged offence which was made as soon as could reasonably be expected after the conduct in question, and the witness gives oral evidence in relation to the matter. There is a further requirement for such a statement to be admissible which is that the complaint must not have been made as a result of a threat or a promise.

Since a previous statement of a witness can become evidence of truth in the circumstances provided for in Section 120, it may be good practice to routinely allow witnesses to refer to previous statements whilst giving evidence, confirming that they are true and that their recollection when they made the statement was significantly better than now. In any event an advocate should always consider introducing a previous statement if it contains a detailed description Section 120(5). This assists the witness giving evidence and enables the court to be given the best evidence. It removes the "memory test" aspect of giving evidence.

The provisions in Section 120 may also be of use when dealing with reluctant and hostile witnesses. It will still be necessary to show that the witness is hostile but once that is done all that is then required is for the witness to confirm any previous statement.

Supplementary

Section 121: Additional requirement for admissibility of multiple hearsay

Section 121 sets out the approach which the courts should take to multiple hearsay. "Multiple hearsay" is where information passes through more than one person before it is recorded.

Under the section a hearsay statement is admissible to prove the fact that another statement was made in three circumstances. These are:

  • Either of the statements is admissible under section 117 (business documents) section 119 (inconsistent statements) or Section 120 (other previous statement of a witnesses);
  • All parties to the proceedings agree; or
  • The court uses its discretion to admit the statement.

The test for the court in deciding whether to exercise its discretion is whether it is satisfied that the value of the evidence in question, taking into account how reliable the statement appears to be, is so high that the interests of justice require the later statement to be admissible for that purpose. This discretion is intended to cover exceptional circumstances where although multiple hearsay does not fall within one of the specified categories for admissibility (in section 121 (1)(a) or (b)) it nevertheless should be admitted in the interests of justice.

Discretion under Section 121 is framed differently to the overall discretion of the court and requires the court to be satisfied that the value of the evidence, taking into account how reliable the statements appear to be is so high that the interests of justice require the later statement to be admissible for that purpose.

It is submitted that the discretion in Section 121 is to be viewed as a higher test than the discretion in Section 114(1)(d). This is because multiple hearsay is more likely to be unreliable. There may still be circumstances where it can be reliable. For instance the following example was given to the Law Commission. A and B are elderly sisters who are both lying ill when they hear that their acquaintance X has been arrested on a serious charge. A realises that she saw X board a train at a place and time which are inconsistent with his guilt, and she tells this to B just before she dies. B tells this to C, a parson, just before she, too, dies. The information coincides exactly with Xs alibi defence at the trial. The Law Commission accepted that this evidence ought to be admissible.

Section 122: Documents produced as exhibits

Section 122 provides that if a statement previously made by a witness is admitted in evidence and produced as an exhibit under Sections 119 or 120, the jury should not take the exhibit with them when they retire to the jury room, unless the court considers it appropriate or all the parties agree that it should accompany them.

Section 123: Capability to make statement

Section 123 provides that an out of court statement cannot be admitted under sections 116, 119 or 120 if the person who made the statement did not have the "required capability" for making a statement at the time the statement was made. A statement may not be admitted under section 117 if any person who supplied or received the information or created or received the document did not have the "required capability" or, where that person cannot be identified, cannot reasonably be assumed to have had the required capability. Under subsection (2) a person is deemed to have the required capability for the purposes of this section if he can understand questions put to him and give answers which can be understood. This section reflects the test for witness competence to give evidence in criminal proceedings under section 53 of the Youth Justice and Criminal Evidence Act 1999.

Section 124: Credibility

Section 124 makes provision for challenges to the credibility of the maker of a hearsay statement who does not give oral evidence in person in the proceedings. If such hearsay statement is admitted as evidence of a matter stated section 124 provides certain rights for the person against whom hearsay evidence has been admitted to produce, in specified circumstances, evidence to discredit the maker of the statement or to show that he has contradicted himself. Section 124 thus provides a replacement for the corresponding provisions in section 28(2) and paragraph 1 of Schedule 2 to the CJA 1988.

The Criminal Justice Act 2003, s. 124, and its application in cases where witnesses do not testify because of fear or intimidation, was examined by the Court of Appeal in R v Taylor [2006] All ER (D) 32 (Jul) The court noted that section 124 enables a judge to strike a fair balance between the interests of the parties in cases where a key witness is not available to testify and submit to cross-examination as to his credibility.

Section 125: Stopping the case where evidence is unconvincing

Section 125 Subsection (1) imposes a duty on the court to stop a case and either direct the jury to acquit the defendant, or discharge the jury, if the case against him or her is based wholly or partly on an out of court statement which is so unconvincing that, considering its importance to the case, a conviction would be unsafe. This issue only arises in relation to jury trials (and by virtue of paragraph 4 of Schedule 7 to service courts) because in other cases, the finders of fact would be bound to dismiss a case in these circumstances, or order a retrial if appropriate.

Similarly, subsection (2) imposes a corresponding duty on the court to direct the jury to acquit of any other offence not charged, of which they could convict by way of an alternative to the offence charged, if the judge is satisfied that a conviction would be unsafe. Subsection (3) extends the duty to cases under the Criminal Procedure (Insanity) Act 1964 where a jury is required to determine whether a defendant, who is deemed unfit to plead, did the act (or made the omission) charged.

Section 126: Court's general discretion to exclude evidence

Section 126 provides a further discretion to exclude superfluous out of court statements if the court is satisfied that the value of the evidence is substantially outweighed by the undue waste of time which its admission would cause. Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect is out of proportion to its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence.

The 2003 Act specifically preserves the power of the court to exclude prosecution evidence under Section 78 of the Police and Criminal Evidence Act 1984 and any other power to exclude evidence at its discretion Section 126(2). It should be noted that Section 78 relates only to the exclusion of prosecution evidence and the common law rules refer to exclusion if it is necessary to secure a fair trial for the accused. It is submitted that the only discretion to exclude defence evidence is that contained in Section 126(1).

Miscellaneous

Section 127: Expert evidence: preparatory work

Section 127 seeks to address the problem which arises where information relied upon by an expert witness is outside the personal experience of the expert (for example work undertaken by an assistant) and cannot be proved by other admissible evidence. The intention is that the rules about advance notice of expert evidence will be amended so as to require advance notice of the name of any person who has prepared information on which the expert has relied. It is envisaged that any other party to the proceedings will be able to apply for a direction that any such person must give evidence in person but a direction will only be given if the court is satisfied that it is in the interests of justice.

In cases where no such application is made in respect of any assistant listed, or an application is made but refused, section 127 will enable the expert witness to base his evidence on any information supplied by that assistant on matters of which that assistant had personal knowledge. Section 127 applies if:

  • The statement was prepared for the purpose of criminal proceedings;
  • The expert's assistant had or might reasonably be supposed to have had personal knowledge of the matters stated; and
  • A notice has been given under the advance notice rules of the name of a person who has prepared a statement on which it is proposed that the expert witness should base any opinion or inference, and the nature of the matters stated.

Where section 127(1) applies, the expert may base an opinion or inference on the statement and any information so relied upon will be admissible as evidence of its truth. Subsections (4) and (5) permit a party to the proceedings to apply for an order that the exception should not apply in the interests of justice. In deciding whether to make such an order, the court may take into account any of the matters mentioned in subsection (5)

Section 128: Confessions

Section 128 inserts section 76A of the Police and Criminal Evidence Act 1984. The position prior to the insertion of this new section 76A was that whilst the prosecution could not make use of a confession which was obtained in breach of sections 76 or 78 of the Police and Criminal Evidence Act 1984, a co-defendant could use it to undermine another co-defendant's account or to strengthen their own case. Instead, section 76A applies the same rules to confessions adduced by the co-defendant to those adduced by the prosecution under sections 76 and 78 of PACE. That is, the confession will not be allowed if obtained by oppression or is rendered unreliable. 'Oppression' is defined in identical terms to section 76(8) of PACE.

Unlike the requirements for the prosecution, under section 76A(2), the co-accused would only need to satisfy the court on the balance of probabilities that the confession was not obtained by oppression or in circumstances likely to render it unreliable.

Subsection (4) maintains the rule that the exclusion of a confession does not affect the admissibility of facts discovered as a result of that confession.

Section 129: Representations other than by a person

Section 129 provides where a statement generated by a machine is based on information implanted into the machine by a human, the output of the device will only be admissible where it is proved that the information was accurate. Subsection (2) preserves the common law presumption that a mechanical device has been properly set or calibrated.

Section 130: Depositions

Section 130 repeals paragraph 5(4) of Schedule 3 of the Crime and Disorder Act 1998 which provided that a judge could overrule an objection to a deposition being read as evidence if he considered it to be in the interests of justice to do so.

Section 131: Evidence at retrial

Section 131 provides that if a retrial is ordered by the Court of Appeal, evidence must be given orally if it was given that way at the original trial except in certain defined situations, in which case a transcript of the earlier evidence may be used. These exceptions are:

  • All parties agree to the evidence being admitted;
  • A witness is unavailable to give evidence in accordance with section 116; or
  • A witness is unavailable to give evidence for a reason other than those listed in section 116 and his evidence is admitted under the residual discretion in section 114(1)(d).

General

Section 132: Rules of court

Section 132 gives a power for making rules of court about the provisions in the Act. The intention is that rules of court will govern both the notice and leave procedures under Chapter 2. Subsection (5)(b) provides that the court or jury can, with leave, draw an adverse inference from the failure of a party to comply with the prescribed requirements.

Section 133: Proof of statements in documents

Section 133 corresponds to the position under section 27 of the Criminal Justice Act 1988, whereby a statement in a document can be proved by producing either the original document or an authenticated copy. It is intended to cover all forms of copying including the use of imaging technology.

Sections 134-136 : Final provisions

Section 134 -136 introduces Schedule 7 which makes provision for Chapter 2 to apply to proceedings before courts-martial, Standing Civilian Courts and the Court-Martial Appeal Court, modifying them as necessary.

Section 136 repeals existing legislation which is spent or is superseded by this Act.

Miscellaneous and Supplemental

Section 137: Evidence by video recording

Section 137 permits a video recording of an interview with a witness (other than the defendant), or a part of such a recording, to be admitted as evidence in chief of the witness in a wider range of circumstances than is presently the case. Subsection (1) provides that the court can authorise such a video recording to replace the evidence-in-chief of a witness provided that:

  • the person claims to be an witness to the offence (or part of it) or to events closely connected to the offence;
  • the video recording of the statement was made at a time when events were fresh in the witness's memory; and
  • the alleged offence can only be tried in the Crown Court or is an either-way offence prescribed by Order of the Secretary of State.

If the recording satisfies these requirements, the court may admit the recording provided that:

  • the witness's recollection of events is likely to be significantly better at the time he gave the recorded account than by the time of the trial; and
  • it is in the interests of justice to admit the recording, having regard to whether the recording is an early and reliable account from the witness, whether the quality is adequate, and any views which the witness may have about using the recording for this purpose.

Under subsection (2) evidence given by a video recording shall be treated as if it was given orally in court in the usual way, providing the witness asserts the truth of it.

Section 138: Video evidence : further provisions

Section 138 Where a video recording (or part of one) is admitted under section 137, section 138 (1) states that the recording should be the final statement of any matters dealt with adequately within the recording for the purpose of the witness's evidence-in-chief.

Subsection (2) allows video recordings to be edited if the interests of justice so require. In determining whether to allow only an edited recording to be used, the court will have to consider whether the parts sought to be excluded are so prejudicial as to outweigh the desirability of using the whole recording.

Section 139: Use of documents to refresh memory

Section 139 creates a presumption that a witness in criminal proceedings may refresh his memory from a document whilst giving evidence providing that:

  • he indicates that the document represents his recollection at the time he made it; and
  • his recollection was likely to be significantly better at the time the document was made (or verified).

The fact that the witness has read the statement before coming into the witness box will not affect this presumption.

In view of the practical difficulties associated with memory refreshing in the witness box from an audio or video recording, subsection (2) makes provision for a witness to refresh his memory from a transcript of such a recording.

Section 139 the Act 2003, provides that a witness may refresh his memory from a document made or verified by him at an earlier time. The conditions for refreshing memory are only that the witness states in his oral evidence that the document records his recollection of the matter at that earlier time and that his recollection at that time is likely to have been significantly better at that time than when he is giving his evidence. The provision also applies to a transcript of a sound recording. Sound recording is not defined in this part of the Act. It is submitted that it would apply to the sound recording contained in a video or DVD.

Mangena, R v (13 October 2009)

Mangena, R v [2009] EWCA Crim 2535 (13 October 2009) It was not a wrongful use of the judge’s power where the he had made a general order, or a blanket order, to permit the Crown to assist the witnesses in giving their evidence by reference to their witness statements so long as they were individually taken through the conditions laid down by section 139(1) Criminal Justice Act 2003.

Section 140:Interpretation of Chapter 3

Section 140 In this Chapter-

  • "criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply;
  • "defendant", in relation to criminal proceedings, means a person charged with an offence in those proceedings;
  • "document" means anything in which information of any description is recorded, but not including any recording of sounds or moving images;
  • "oral evidence" includes evidence which, by reason of any disability, disorder or other impairment, a person called as a witness gives in writing or by signs or by way of any device;
  • "video recording" means any recording, on any medium, from which a moving image may by any means be produced, and includes the accompanying sound-track
Section 141: Saving

Section 141 No provision of this Part has effect in relation to criminal proceedings begun before the commencement of that provision.

Research: Law Com reports


Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

Retrieved from "http://www.wikicrimeline.co.uk/index.php?title=Hearsay_evidence"
Personal tools