Hearsay - exceptions I

Question 1

When is a statement hearsay?

Answer 1

• it’s made out of court and
• person that made it intended another to believe it and
• it’s adduced as evidence of matter stated

Question 2

When is hearsay admissible?

Answer 2

While general rule is that it’s inadmissible, it can be admissible if it falls within exceptions:
* any of statutory exceptions in CJA
* any of common law exceptions preserved under CJA
* agreed by all parties
* court uses statutory discretion to admit hearsay in interest of justice

Question 3

Under statutory exceptions in CJA, when can hearsay be admissible?

Answer 3

• if witness is unavailable
• if it’s a business document - court has discretion to exclude if satisfied document’s reliability is doubtful
• interests of justice to admit it
  = court has discretion to exclude under s.78 PACE

Question 4

What is said about cases where witness is unavailable?

Answer 4

Hearsay is admissible if:
* oral evidence given by person who made statement would be admissible as evidence of that matter
* person who made statement is identified to court’s satisfaction and
* any of 5 conditions is satisfied:
a) relevant person is dead
b) relevant person is unfit to be witness due to bodily or mental condition - need not be medical or based on her fitness to physically attend
c) relevant person is outside UK (and not reasonably practicable to secure attendence)
d) relevant person cannot be found (given steps have been taken to find person)
e) through fear, relevant person does not give oral evidence in proceeding and court gives leave for statement to be given in evidence because of interest of justice (e.g., fear of death or injury of another or of financial loss)
- special measures such as being screened from D - needs to be vulnerable & intimidated

FOUND acyronmn

fear need not only be caused by D but by other things - court has to be satisfied that witness does not give evidence through fear

Question 5

What is said about business documents?

Answer 5

Statement in a document is admissible as evidence if requirements are satisfied:
* document or part containing statement was created or received by person in course of trade, business or profession
* person who supplied information contained in statement (relevant person) had or may reasonably be supposed to have had personal knowledge of matters dealt with
* each person through whom information was supplied from relevant person to person received received information in course of trade, business or profession

covers medicial record documents and statements written by police in course of duty

Question 6

What are the rules for documents prepared for criminal proceedings?

Answer 6

To be admissible, documents either:
* need to satisfy one of 5 conditions in s.116 (unavailable witness) or
* person who supplied information contained in statement cannot reasonably be expected to have any recollection of matters dealt with in statement

Question 7

In what instance does court have discretion to exclude evidence that would otherwise be admissible?

Answer 7

If satisfied that statement’s reliability is doubtful in view of:
* its contents
* source of information contained in it
* way in which or circumstances in which information was supplied or received
* way in which or circumstances in which document concerned was created or received

Question 8

What should courts have regards to when deciding whether admission of hearsay evidence is in interests of justice?

Answer 8

• probative value the statement has
• other evidence that has been or can be given on matter
• importance of matter or evidence in context of case as a whole
• circumstances in which statement was made
• reliability of evidence
• whether oral evidence of matter can be given
  = cannot be used by party to repair failings on part of party seeking to adduce evidence

application of interests of justice needs to be approached with caution