The Rationale for the Exclusion of Hearsay Evidence

Discuss the rationale for the exclusion of hearsay evidence. Consider the impact of the inclusionary discretion in the Criminal Justice Act with particular reference to recent case law.

When a person faces criminal charges or even before a person is charged of any crime or wrong doing, the audience is most likely to hear the word evidence used frequently in court. In fact, most cases rely heavily on evidence or even exist solely because of evidence. Evidence is simply anything that supports or proves a person’s innocence or guilt.

There are many forms of evidence which are used for the purpose of the law. Real evidence is a material object and could include anything found or collected at the scene such as blood stains or even hair. Additionally, any form of DNA evidence or fingerprints left at the scene, however, most fingerprints are not visible to the naked eye, some have to be developed and can then still only be seen at a particular wavelength of light. There is also documentary evidence, which is any evidence in the form of a recorded document. [1] Many would think this as written documents, but this goes for any type of media which is recorded. Furthermore, there is there is confession evidence. This is evidence which is admitted by the defendant and usually occurs in police interviews. Another type of evidence is known as direct testimony, which is a statement made by a witness about a fact of which they have first-hand knowledge. For instance, statements made by a witness which could prove or disprove the presence or absence of the victim or defendant at the scene. Finally, there is hearsay evidence which is any statement made by a witness in the course of their evidence which offers truth of the contents.

Any evidence must go through several stages and conform to many rules before it can be admitted into a court room. Also there must be certain exclusionary rules placed upon the evidence to prohibit admission into the court room due to it being obtained wrongly or unfairly. To explain relevance, in the case of DPP v Kilbourne, Lord Simon of Glaisdale said “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof” [2] . Lord Simon says that the evidence must be relevant to the fact in issue and must acquire some weight of relevance too; he continues to say “evidence is evidence which makes the matter which requires proof more or less probable” [3] . This brings me to the next point of weight, in which certain evidence is decided on its probative value in order to exclude any evidence which may cause an unfair proceeding and finally admissibility rules must be considered. Admissibility is when evidence is included at the court hearing unless excluded by exclusionary rules or at the judge’s discretion.

I have chosen to look at hearsay evidence and how certain rules apply before a certain document or evidence is admissible in court. I will also look into how hearsay evidence has evolved over the past years and what new exceptions and gateways have been introduced, removed or modified to allow a fair trial to proceed and how certain documents are admitted in a court proceeding after these certain gateways have been crossed.

Hearsay is explained largely under Sections 114 – 141 in the Criminal Justice Act 2003. Over the years hearsay has been redefined over the years from the Criminal Justice Act of 1988 but professor Sir Rupert Cross redefined the rule against hearsay and this was later accepted and acknowledged by Lord Havers at the House of Lords in the case of R v Sharp [4] , he said hearsay “is an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted” [5] . This definition was also accepted a few years after in the case of R v Kearley [6] where Lord Ackner summarised his case based on hearsay and deemed it to be “irrelevant and inadmissible”. What Lord Havers said basically means if the original person did not say it orally and someone else had recalled the words of what the original person said then it would not be allowed in the court room, unless certain rules have been accepted for it to be admitted and also following the judge’s discretion.

The rules of hearsay were established in the late seventeenth century and were further recognized by the early nineteenth century. The issues raised of hearsay were talked about extensively in the case of Wright v Doe D. Tatham. [7] This case tried to prove the developments of hearsay rules by showing that for example the documentary evidence gathered in this case under the old English law was hearsay, however under the modern law it is not thought to be hearsay. Furthermore to this case, there was a change in the law and a review was taken on the law of hearsay and modifications along with rules were added under the Criminal Justice Act of 1988. For example adding to the Wright v Doe D. Tatham case, documentary hearsay evidence was highlighted under Criminal Justice Act 1988 (c. 33) s. 24 (2) as, “…evidence of any fact which direct oral evidence would be admissible, if the following conditions are satisfied – (i) the document was created or received by a person in the course of a trade, business, profession or other occupation…” [8]

Prior to the advances and changes introduced by the Criminal Justice Act 2003, a witness back then could not give testimony about what he heard from others or submit any form of evidence in a written form rather than to attend the hearing. This can be found in the Criminal Justice Act of 2003 under s. 117, “…the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation…the person who supplied the information contained in the statement had or may reasonably be supposed to have had personal knowledge or the matters dealt with…” [9] . This section goes into extensive detail about documentary hearsay and how it can be admitted. Most can be admitted if the person has first-hand knowledge of where the information was obtained. However if the information is not first-hand knowledge and the witness is unavailable to testify in court, someone can present the information on their behalf as stated under s.116 of the Criminal Justice Act, where the witness is unavailable.

Further development in documentary hearsay rules were made because they reduce the risks that a jury hear unreliable evidence which had yet to be cross-examined. For example in Sparks v The Queen [10] , the defence were not permitted to present evidence which would have suggested the offence was not committed by the defendant. This was excluded and Lord Morris added “Our law is firmly based upon the view that it is wiser and better that hearsay should be excluded save in certain well-defined and rather exceptional circumstances” [11] . He claims that any form of hearsay evidence should be excluded from hearings apart from if really necessary to prove a fact in issue, which is safer as it reduce cost and saves time so a charge or a decision can be reached sooner.

Similar to the case of R v Turner [12] , Turner’s case was that he wanted to adduce evidence which another party had admitted to having committing the offence of which turner had originally been charged with. Milmo J said “…the defence is entitled to adduce hearsay evidence to establish fact, which is proved would be relevant and would assist the defence, is wholly erroneous” [13] . Milmo says basically the fact that if the defence try to use evidence in their defence which they have adduced and the “authorities have confirmed it’s an out-of-court confession” [14] would not be allowed as it may lead to an unfair trial and unbalanced verdict and therefore inadmissible.

Earlier I stated that certain evidence can be admitted and presented in court on behalf of someone else due to the witness being unavailable. The statutory exception of the witness being unavailable falls under section 116 of Criminal Justice Act 2003; however this statute is not too different to the provision made in the criminal justice Act of 1988. There is a broader understanding of the availability of witnesses under Federal Rules of Evidence (FRE) section 804 (a). To begin with, evidence is admitted provided that the witness’s oral evidence can be accepted and that the witness is identified in the court for it to proceed. However to obtain oral evidence, it may not always be easy due to a number of reasons, firstly “the relevant person has died” [15] before the court proceeding takes place as stated under section 116 (2)(a). This may not just be the fact that the person has died but could potentially die if the proceeding went ahead due to their medical conditions. For example in Millett [16] , a 79 year old victim of a burglary may have her evidence in documentary form because of her medical condition which may indicate a high risk of her suffering blindness or possibly a stroke if she testified in court as herself. The court therefore ruled that any witness who runs a risk of a potential serious of consequences if they testified in person could be classed as unfit because of their condition and therefore on behalf of them document hearsay evidence admitted into the proceeding. Millets situation falls under subsection (2) (b) “a witness is unfit to be a witness because of his/ her bodily or mental condition…” [17]

Furthermore to section 116, subsection (2) (c) states “the relevant person is outside the UK and is not practicable to secure their attendance” [18] . This section like the other 2 subsections are also similar to the provisions made in the 1988 Act. This provision is a safeguard for certain witnesses or anyone vitally important to the investigation is out of the country and is not available in person to testify and give evidence in court. In the case of Radak [19] , the court of appeal held that “secure his attendance” not only means attending in person to testify but attending through a means of giving evidence by either live television or a video link. This is comparable to Criminal Justice Act of 1988 section 32 which states “a person other than the accused may give evidence through a live television link If – (a) the witness is outside the united kingdom”. [20] Section 116, subsection (2) (d) is similar to above but the witnesses have not left UK but cannot be found and “such steps as it reasonably practicable to take to find them have been taken” [21] . This is only slightly different to its previous provision made in 1988 Act s.23 (2) (c). This section is for when witnesses or people vital to the investigation cannot be located or contacted, for example voicemails have been left on their home phone but the person contacted have not checked nor replied to their voicemails.

A recent case which shows that this statute is a success is Adams [22] . In this case, the prosecution made contact with the witness on their mobile phone and a voicemail was left on the final working day before the trial was due to commence. However, on the day of the trial the police officer was unsuccessful in reaching the witness that the judge said that “leaving contact with the witness such as this until the last working day before the trial is not good enough” and he continues by saying “it certainly is not such steps as it is reasonably practicable to take to find him [23] “. This goes on to show if for example a voicemail was left and there was no reply, they should have taken more time and effort to try and contact him by either visiting the address or the work address or to have at least contacted his office or work, because this was not done, “practicable methods” were not carried out. Also they should have allowed reasonable time of contact before the person is due for court.

Section 116, subsections (a) – (d) class the admissibility of the evidence as automatic however there are exclusionary rules under section 126 of the Criminal Justice Act 2003 which at the courts discretion could choose to exclude the evidence, section 126 (2) (b), and make it inadmissible in court. Section 126 (1) (b) also states if “The court is satisfied that the case for excluding the statement…would result in…waste of time” [24] it would automatically make the evidence inadmissible.

The final part to Section 116 is subsection (2) (e). This section goes into detail about “fear” through to which it leads to “the person does not give oral evidence in the proceedings” [25] . This provision is supposed to allow the courts to be more sympathetic to witnesses who do not testify in court. This provision also continues into subsection (3) which “fear” could be interpreted to mean “fear of death or injury of another person or of financial loss” [26] .

Moving on with the hearsay argument, the next section of Criminal Justice Act 2003 goes into detail about documentary evidence and hearsay. Section 117 talks about how rules and exclusions also affect businesses and how their documents may or may not be classed as hearsay and whether certain documents could be admitted or denied into the court room depending on its weight and relevance to the court room. This section is similar to previous Act 1988, section 24 which is a provision specially made for documents which were generated in the development of a business.

Subsection (2) states that some requirements are needed to pass in order for the document to be admitted. This requirement is that “the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation…” [27] Furthermore, the requirements are satisfied if “any of the five conditions mentioned in section 116 (2)” [28] are met and the court may make a decision if the reliability of the evidence “tendered is doubtful in view of (a) of its contents, (b) source…(c)supplied or received” or the way it was “(d)created or received” [29] .

A document is anything which has information on it which has been recorded to it, so in this instance, this could be a computer, a memory stick or a CD, and many more formats to which anything can be recorded on it and preserved. For example, in the case of Duffy [30] , they had a video recording of a disabled witness giving a statement to the police which in the court was admitted as a document under the Act of 1988 which under the same circumstances would be treated as a document and also acceptable under the 2003 Act.

Another case which shows the importance of documents is the case of Maher v DPP [31] . This case was about a car accident in which the appellant had reversed her car into a parked car and then drove away without leaving a note on the car she damaged. A witness saw the accident and noted down the registration number of the appellant’s car and placed it on the windscreen wiper of the damaged car. The owner of the damaged car passed the registration number to the police and was recorded in the relevant log. During the process the note had been lost and therefore the log remained unreliable and was based on multiple statements of hearsay. However at the trial it was heavily relied on section 117 (2) (c), which states “each person through whom the information was supplied from the relevant person …received the information in the course of a trade, business, profession or other occupation”, [32] but because “taking into account how reliable the statements appear to be” and relying on section 121 (1) (c) they later made “the statement to be admissible for that purpose” [33] , but going back to the particulars of the case, because the note was not present at the case, there could have been some distortion in the way the case was presented and due to potential human error, it may be possible that distortion in the note taking could have been the case because the note was not presented at court. The risk of distortion cannot exactly be cross examined, because cross examining a witness who replicates a statement will usually produce small amount of information of whether there has been distortion or not. Which is why the information can be passed on to the jury, however the jury must adduce the evidence with caution.

Furthermore for police records to be admitted, more inclusionary rules must be met and sometimes a discretion to exclude can sometimes be the case, which moves onto the later subsections in section 117 (6) and (7), similar to section 116 (2) discussed above, of which they are satisfied of the statements reliability as evidence and how it was obtained but could be doubtful in “(a) its contents (b) source of the information contained in it…(c) was supplied or received” or the way it was “(d)created or received” [34] .

Section 118 focuses on different aspects of how certain evidence can still be admitted and preserved from any exclusionary rules. The first preservation rule is for a wide range of documents and other sources of information and evidence which are admitted through the court. First subsection deals with evidence of a public nature, for example “histories, scientific works, dictionaries and maps” [35] these are admissible as evidence as they portray facts of a public nature. Furthermore more information which has been preserved is records which show judicial arrangements and are evidence as facts in courts. Finally the evidence relating to someone’s “age or date or place of birth” [Criminal Justice Act 2003 (c.44) s. 118 (1) (d)] may also be admitted as evidence. However these all fall under hearsay because the person who wrote the facts will most probably not be available to testify as some records are backdated possibly to several decades.

Section 118 also talks about how expert evidence could also be a preserved and still admitted in court. Most of expert evidence is based on instruments or notes which solely base findings and results on data received, which is fact. This information is accepted as it being confident data within an expert’s field. The case of Abadom [36] explains this section in detail as it was shown that an expert can rely on what is considered as hearsay, i.e. the findings by other specialists in similar field as them. The expert matched the refractive index to glass that was found on a suspects shoe to the glass that was obtained as evidence at the crime scene and was confirmed because of the glass being rare that this was conclusive evidence that the fragments found on the shoe matched the fragments found at the crime scene. However the glass was analysed by another witness and the percentage found by the first expert was found to be a standard measurement accepted by the Home Office of which this expert had no knowledge of this measurement but was documented as a respected set of data. The court of appeal rejected the argument and Kerr LJ held that “it is part of [their] duty to consider any material that may be available in [their] field and must inevitably form an important ingredient in the cogency or probative value of his conclusion in the particular field” [37] . The evidence been admitted therefore bring rule 8 of section 118, “any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field”. [38] Another case which show documents made from experts is that of R v Jackson [39] which tells us that “primary facts should be proved by admissible evidence” [40] .

With all evidence material there is always a problem of finding which path to follow to allow the evidence to be admitted. This is why inclusionary rules have been made to allow certain evidence by default to be allowed and brought into the court room and be presented as evidence to supplement the case. However not all material is admitted into the court room, Section 114 (1) (d) of Criminal Justice Act 2003 evaluates a certain piece of evidence based on its probative value in relation to the fact in issue. Also “how important the matter or evidence is in the context of the case and reliable the maker appears to be” [41]

As with most of these sections in the 2003 Act, there are general safeguards to which evidence material can be admitted through but most sections refer to Police and Criminal Evidence Act (PACE) 1988 section 78. This provision was made to ensure a trial goes ahead to exclude elements such as a biased proceeding and to allow evidence so it would not have an adverse effect to the trial. Otherwise the court would choose to not admit it. “78 – (1) in any proceedings the court may refuse to allow evidence on which the prosecution proposes… having regard all the circumstances… the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” [42]

Another safeguard used is s.126 of Criminal Justice Act as discussed above which excludes any statement if it is thought to be a danger to admit it which could result eventually in a waste of time.

With the problems of admitting a piece of forensic evidence and the certain rules and provisions it must satisfy, the European Convention which is known internationally as an organisation which have organised a set of rules to which courts must follow and adhere to. This came to action in the early 1950’s and has been in force since then. Article 6 is given most focus on defining and producing a detailed right to a fair trial. This includes allowing the parties adequate time to prepare their defence and have any access to legal representation and if possible to proceed with cross examination of evidence or any witnesses which are called to stand and give testimony in court. Furthermore to the matter concerned in this report, this allows the parties also to cross reference to statutes and make sure that any evidence which is questioned as hearsay to be admitted with the right law and inclusionary rules.

Article 6, section 1 talks about the fairness of a public hearing and how everyone is given sufficient time to prepare their case. The section which is more focused on in this provision is article 6, section (3) (d). This section focuses on the right to have a cross examination of the witness or to be examined against the witness. This examination doesn’t always mean that the prosecution will never depend on hearsay evidence but this does mean that the prosecution must take particular reasonable steps to examine a witness if they are unable to attend in court. Article 6 (3) (d) goes on to say that it should not grant the right to secure the attendance of the witness but should provide some equality and fairness to both the defence and the prosecution. Furthermore in the Pre-2001 Strasbourg authorities, the authorities had established a few principles, one of which, any person that produces a statement classified as hearsay must be a witness for the purpose of section (3) (d).

The recent case of Grant v The Queen [43] goes into more detail about the ruling of using hearsay evidence alone to acquit at court however this proposition of a conviction which is based exclusively on hearsay evidence was rejected by the English courts because of it going against article 6 by making it unfair to the defence.

To conclude, hearsay evidence is covered extensively throughout the years going back from the Criminal Justice Act 1988 to the more recent provisions in the 2003 Act which have been refined to cover all aspects of admitting hearsay evidence into the court room to ensure that important material which is needed to prove a fact in issue at court is admitted but through a way which the defence and prosecution both agree on in order for them to receive a fair treatment and essentially progress onto an unbiased charge.

Sections 116 are provisions made suitably for those witnesses who are unavailable to attend the court to testify whether they have died or are out of the country before the trial had started. Moreover section 117 deals with evidence which is run in the course of a business and how certain evidence may lead to challenges on the path and authenticity of how the data was obtained. Section 118 follows this by dealing with how evidence can be preserved and admitted in court through the course of certain characteristics by default. With all these provisions there are certain inclusionary rules and boundaries which must be overcome to examine the relevance of a certain document and its weight on the fact in issue and following this the exclusionary rules to exclude them from a case as to maintain fairness between the two parties.

Over the years there have been a number of cases which have successfully changed the provisions of the law by improving how the court manages certain evidence and how now cases can be resolved more efficiently and more fairly.

Case List:

DPP v Kilbourne [1973] AC 729 at 756 HL

R v Sharp [1988] 1 WLR 7

R v Kearley [1992] 2 AC 228

Wright v Doe D. Tatham. 7 Ad. & El. 313 [1837]

Sparks v The Queen [1964] AC 964

R v Turner [1975] 61 Cr App R 67

Millet [2000] 21 July, Transcript No: 99/07705/W2

Radak [1999] 1 Cr App R 187

Adams [2008] 172 JP 113

Duffy [1999] 1 Cr App R 307

Maher v DPP [2006] EWHC 1271

Abadom [1983] 1 WLR 126

R v Jackson (1996) Crim LR 732

Grant v The Queen [2006] 2 WLR 835

Statute List:

Criminal Justice Act 1988 (c.33) s.24

Criminal Justice Act 1988 (c.33) s.32

Criminal Justice Act 1988 (c.44) s.114

Criminal Justice Act 1988 (c.44) s.116

Criminal Justice Act 1988 (c.44) s.117

Criminal Justice Act 1988 (c.44) s.118

Criminal Justice Act 1988 (c.44) s.121

Criminal Justice Act 1988 (c.44) s.128

Police and Criminal Evidence Act 1988 (c.60) s78

Federal Rules of Evidence

Article 6, European Convention of Human rights