The Law of Evidence Fact Sheets - Hearsay

HEARSAY - 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.

Copyright Dr Richard Jones 1999

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The Law of Evidence Fact Sheets - Hearsay 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.

Copyright Dr Richard Jones 1999

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The Law of Evidence Fact Sheets - Hearsay 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.

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The Law of Evidence Fact Sheets - Hearsay 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.

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The Law of Evidence Fact Sheets - Hearsay

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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