Hearsay
The new law of hearsay - introduced by chapter 2 of part 11 of the Criminal Justice Act 2003 - has come into force in relation to all cases where the trial commenced on, or after, 4 April 2005.
There are four ways in which hearsay evidence may be introduced (see section 114):
This provision was intended by the Law Commission as a safety valve but its wording would allow for the much wider introduction of evidence.
Hearsay evidence is a statement not made in oral evidence as evidence of any 'matter stated'. A statement is any representation of fact or opinion made by a person by whatever means, including sketch, photograph or other pictorial form. The 'matter stated' is relevant only if a purpose of the person making the statement appears to the court 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.
This definition reverses the House of Lords decision in R v Kearley [1992] 2 AC 228. The implied assertion in that case, that Kearley must be a drug dealer because of the number of calls requesting drugs, is no longer deemed to be hearsay at all, as the caller would not have intended to assert to any other person that Kearley was a drug dealer but merely to order his drugs (section 115).
The provisions of section 116 allow for the admissibility of the hearsay evidence of witnesses who are not available and is much wider than the provisions on documentary hearsay in the Criminal Justice Act 1988, which it replaces. The grounds for admissibility remain the same, namely the witness is dead, unfit because of bodily or mental condition, outside the UK when it is not reasonably practical to secure attendance, cannot be found although reasonable steps have been taken, or does not give evidence through fear.
However, there are three significant changes from the old law. No longer is this rule restricted to documentary statements. Oral statements, including, for instance, statements made by witnesses to solicitors over the telephone, will be admissible if any of the qualifying criteria is met.
In addition, there is now only a very small discretion to exclude such evidence. This only exists in relation to the ground based on fear when the criteria of section 116(4) must be met, including a consideration of the availability of special measures. In all other cases, the evidence will be admitted.
The fact that a witness will not give evidence through fear is available as much to the defence as to the prosecution. However, the conditions for admissibility will not be deemed to have been met if the qualifying grounds are caused by the defendant or a person acting on his behalf.
The rules in relation to business documents are now contained in section 117. Documents are admissible if they were created in the course of a trade, business or profession, or office, and the person who supplied the information had, or may reasonably supposed to have had, personal knowledge of the matters dealt with, and each person through whom the information was supplied did so in the cause of a trade, business or profession, or office.
Where the statement was prepared for the purposes of criminal proceedings, it is admissible if one of two requirements is met: either one of the five criteria of section 116 must be met, or the requirement that the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement, having regard to the length of time since he supplied the information and all other circumstances. A business document is not admissible if the court is satisfied that the statement's reliability is doubtful.
Sections 119 and 120 deal with prior inconsistent and prior consistent statements. In broad terms, these sections do not change the circumstances in which such statements are admissible as a matter of law. Prior inconsistent statements will be admitted where a defendant admits such has occurred or it is proved under sections 3, 4 or 5 of the Criminal Procedure Act 1865.
A previous consistent statement may be admitted: to rebut an allegation of recent fabrication; if it is a statement made in a document that is used by a defendant to refresh his memory while giving evidence and on which he is cross-examined and that, as a consequence, has been received in evidence; or if he refers to a statement and indicates that to his best belief he made the statement and it is true.
This can occur in any one of three situations: where the statement identifies or describes a person, object or place; or the statement was made when matters were fresh in his memory but he does not now remember them and cannot reasonably be expected to remember them; or the witness is a victim of the offence and the statement consists of a recent complaint made by the witness and before the statement is adduced the victim gives oral evidence. In all these situations, the prior statement is admissible not only as to the credibility of the witness now giving evidence, but as to the truth of the earlier statement.
Preparatory work undertaken for experts may be introduced as admissible hearsay, subject to the provisions of section 127. Provision for the use of multiple hearsay is made in section 121, which refers only to statements made under sections 117, 119 or 120. A hearsay document admitted under sections 119 and 120 may not be taken on retirement by a jury unless the court considers it appropriate, or all the parties agree (section 122). Under the provisions of section 123, a witness must have capacity to make a statement at the time it is originally made if it is to be introduced under these rules.
If a hearsay statement is admitted, then evidence going to the credibility of that witness may also be admitted (section 124). Where a representation made by a machine depends for its accuracy on information from a person, then the representation is not admissible unless the relevant party proves that the information is accurate, but this is without prejudice to the assumption that a machine works properly unless evidence to the contrary is introduced (section 129).
Provision for the exclusion of otherwise admissible evidence is made in sections 125 and 126, although the discretionary provisions of section 78 of the Police and Criminal Evidence Act 1984 (PACE) remain available to the defence (section 126(2)(a)). If a trial is heard on indictment, the court can effectively end the trial when the evidence against the defendant is based wholly, or partially, on hearsay evidence and the evidence provided is so unconvincing that, considering its importance to the case against the defendant, a conviction would be unsafe. The only exclusion available in the magistrates' court, as well as the Crown Court, is that under section 126, but this is limited to cases where the amount of time that would be taken to argue the hearsay issue substantially outweighs the significance of the evidence being considered.
The rule in R v Myers [1998] AC 124, has been reversed by the provisions of section 128 introducing a new section 76A into PACE. A confession made by one defendant may not be given in evidence against a co-defendant once the issue has been raised by that co-defendant unless the court finds that the confession was reliable and not obtained by oppression.
Bad character
Chapter 1 of part 11 of the Criminal Justice Act 2003, in relation to evidence of bad character, is in force regarding all cases where the trial or Newton hearing (R v Newton [1983] Crim LR 198) began on, or after, 15 December 2004 (R v Bradley [2005] Crim LR 411). The provisions received their first consideration in the Court of Appeal in R v Hanson, Gilmore and Pickstone (2005) The Times, 24 March.
The judgment contains a helpful summary of the law in relation to one of the seven 'gateways' by which a defendant's previous convictions may be introduced by the Crown as 'bad character' evidence. This is 'gateway' section 101(d), that it is relevant to an important matter in issue between the defendant and the prosecution. That phrase is further defined by section 103 as including the issues whether the defendant has a propensity to commit offences of the kind with which he is charged, or has a propensity to be untruthful.
There are essentially three ways in which the Crown can introduce evidence of the defendant's previous convictions. It may rely on the fact that the new offence is in the same 'category' as an earlier conviction. To date there have been two such categories identified by statutory instrument. These relate to a defined list of offences of 'theft' and to a substantial list of sexual offences involving children younger than the age of 16.
Alternatively, the Crown may argue in accordance with the provisions of section 103(2) that the offences are the same description. This is a narrow provision, as it requires that the statement of the offence in a written charge or indictment would in each case be in the same terms.
Thirdly, there may be such factual similarities between the new offence and the old as to fall within the definition of the defendant having a propensity to commit offences of the kind with which he is now charged.
The court made clear that none of these three grounds is itself enough to allow the Crown to lead the evidence of the previous convictions. First it must be asked whether the previous convictions do in fact establish a propensity to commit crime. It will require a specific factual connection to do this. If there is only one previous conviction, it is seldom that there can be a propensity. Secondly, even if a propensity can be established, the court must consider whether that propensity makes it more likely that the defendant is guilty of the current offence. Thus even offences in the same category may fall by the wayside.
Previous convictions for burglary or handling may have no bearing at all on a present allegation of taking a motor vehicle without consent. Even if each of those tests is met, the court must consider whether it would be unjust to admit the evidence of the previous convictions (section 103(3)). This may be because of the age of the original conviction but, as the court emphasises, if the other evidence in the case is weak it will often be unjust to allow the Crown to build a case on previous convictions virtually alone. The sentence imposed should not be disclosed even when convictions are admitted.
The message coming from this analysis is that the mere fact of conviction will never itself be enough. The court will need to examine the underlying facts to see whether the various tests are met. This has a particular importance if, as is increasingly likely, suspects in the police station are asked to deal with their previous convictions. It would seem unwise to do so as at that stage. There is unlikely to be anything like sufficient information about the particular circumstances to indicate whether or not the enquiry is relevant. This is also important because a defendant - even doing his best - may give answers that in the result turn out not to be accurate, thus laying himself open to allegations of untruthfulness, the second propensity that is relevant at trial to an issue between the Crown and the defence. There seems little risk of any inference from silence about previous convictions as the facts will speak for themselves by the time of trial.
The court made plain that applications to introduce a defendant's bad character should not routinely be made. In areas where this appears to be an established policy of the Crown Prosecution Service, the practice should be capable of judicial review in relation to magistrates' court proceedings.
This leads onto the issue of whether, when under the provisions of section 100, the defence seeks leave to introduce the previous convictions of a prosecution witness, it may do so merely because those convictions are for dishonesty. Here the case is different. While directing submissions to the provisions particularly of section 100(3), the issue for the defence is usually the credibility of the prosecution witness and not merely their truthfulness. Therefore, the statute allows a different test for the Crown and the defence in this regard.
Reference throughout the Court of Appeal judgment is made to the rules that require notice to be given of an application to introduce bad character. Any party wishing to cross-examine a witness who is not a defendant must apply not more than 14 days after the prosecution has complied with its initial disclosure obligations or as soon as reasonably practicable. A party wishing to oppose the application may do so within 14 days.
Prosecutors wishing to introduce evidence of a defendant's bad character must give notice at the same time as complying with the initial duty of disclosure. The defence may oppose that application within seven days. The court may allow a notice or application to be given in a different form, or orally, and shorten a time limit when it is in the interests of justice, but to make applications as a matter of routine at the time of trial, particularly in the magistrates' court, is merely to seek to prejudice the bench and to prevent full preparation from being undertaken.
By Anthony Edwards, TV Edwards, London
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