Hearsay in English law

Last updated

The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.

Contents

Section 114 of the Criminal Justice Act 2003 defines hearsay evidence as a statement not made in oral evidence in criminal proceedings and admissible as evidence of any matter stated but only if certain conditions are met, specifically where:

The meaning of "statements" and "matter stated" is explained in section 115 of the 2003 Act. "Oral evidence" is defined in section 134(1) of that Act.

History of the rule

The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in Wright v Doe d Tatham. [1] The technical nature of the discussion in Doe d Tatham inhibited much reasoned progress of the law, whose progress (in the form of judicial capacity to reform it) ended not long afterwards. [2] Later attempts to reform through the common law it got little further, with Lord Reid in Myers v DPP [3] saying

If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of parts of the existing law of hearsay susceptible of similar treatment, ... The only satisfactory solution is by legislation following on a wide survey of the whole field ... A policy of make do and mend is not appropriate.

There was some statutory reform in the nineteenth century (see Bankers' Books Evidence Act 1879), and later the Evidence Act 1938 made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid [3] and Lord Diplock. [4]

The Law Commission [5] and Supreme Court committee [6] provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972.

The Criminal Justice Act 2003 ("2003 Act"), which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the Law Commission in Evidence in Criminal Proceedings: Hearsay and Related Topics (LC245), published on 19 June 1997. Previously, the Criminal Justice Act 1988 carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act.

Reasoning behind the rule

The reasoning behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. Direct evidence is given under oath (with potential criminal liability for perjury if the testimony is subsequently proven false), in the presence of the court and jury, and may be cross-examined. In adducing direct evidence (that is, recollection of a witness in court) the court considers how the witness would have perceived the event at the time, potential ambiguities, and the witness's sincerity. These can be tested in cross-examination.

A statement reported in hearsay is not generally subject to these safeguards. The person making the original statement was not testifying under oath, and was not subject to cross-examination. Even assuming that the witness reporting the original statement does so completely truthfully, it remains possible that the person making the original statement was lying, joking, or exaggerating. It is also possible that the witness testifying at trial misunderstood the original statement. The court has no way to assess these possibilities, except via the testimony of the witness reporting the hearsay.

Although the hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence: [7]

the hearsay rule operates in two ways: (a) it forbids using the credit of an absent declarant as the basis of an inference, and (b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such and such circumstances.

The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has led to misunderstandings about the nature of hearsay. [8]

A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the European Convention on Human Rights (articles 6(1) and 6(3)(d)) and, in the United States the sixth amendment of its Constitution (its principles tracing back to Raleigh's Trial [9] ).

Civil proceedings

Hearsay is generally admissible in civil proceedings. [10] This is one area in which English law differs dramatically from American law; under the Federal Rules of Evidence, used in U.S. federal courts and followed practically verbatim in almost all states, hearsay is inadmissible in both criminal and civil trials barring a recognised exception.

The law concerning hearsay in civil proceedings was reformed substantially by the Civil Evidence Act 1995 [11] ("the 1995 Act") and is now primarily upon a statutory footing. The Act arose from a report of the Law Commission published in 1993 [12] which criticised the previous reforming statutes' excessive caution and cumbersome procedures. Section 1 of the Act says

In civil proceedings evidence shall not be excluded on the ground that it is hearsay

This includes hearsay of multiple degree (that is, hearsay evidence of hearsay evidence: for example "Jack told me that Jill told him that she went up the hill").

Other provisions of the 1995 Act preserve common law rules relating to public documents, published works of a public nature and public records. [13] The common law in respect of good and bad character, reputation or family tradition is also preserved. [14]

The Act moves some of the focus of hearsay evidence to weight, rather than admissibility, setting out considerations in assessing the evidence (set out in summary form): [15]

Criminal proceedings

Statutory definition

The Criminal Justice Act 2003 defines hearsay as statements "not made in oral evidence in the proceedings" being used "as evidence of any matter stated". [16]

General rule

The general rule clearly states that hearsay will not be used in court proceedings as it is not generally admissible.

Statutory exceptions

Unavailable witnesses

A witness's testimony may be read in court if the witness is unavailable to attend. [17]

To be admissible, the evidence must be otherwise admissible, and the maker of the statement identified to the court's satisfaction. Additionally, the absent person making the original statement must fall within one of following categories:[ citation needed ]

  • Unfit to be a witness because of bodily or mental condition
  • Outside the United Kingdom and it is not reasonably practicable to secure their attendance
  • Cannot be found, and reasonably practicable steps to find them have been taken
  • Afraid to testify or continue to testify

In the case of absence through fear, additional safeguards are imposed prior to the statement's admission. The court must be satisfied it is in the interests of justice, particularly considering the statements contents, whether special measures (screens in court, or video live-link) would assist, and any unfairness to the defendant in not being able to challenge the evidence.

A party to the proceedings (that is, either the prosecution or defence) who causes any of the above five conditions to occur to stop a witness giving evidence, cannot then adduce the hearsay evidence of it.

The scope of this rule has been considered in cases when much of the prosecution case involves evidence by a witness who is absent from court. In Luca v Italy (2003), [18] in the European Court of Human Rights, it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine breached Article 6 of the Convention (right to a fair trial). However in R v Arnold (2004), [19] in the Court of Appeal, it was said this rule would permit of some exceptions, otherwise it would provide a licence to intimidate witnesses - though neither should it be treated as a licence for prosecutors to prevent testing of their case. Each application had to be weighed carefully.

Business documents

Documents created in the course of a trade, occupation, profession or public office (referred to as "business") can be used as evidence of the facts stated therein. [20]

To be admissible, the evidence referred to in the document must itself be admissible. The person supplying the information must have had personal knowledge of it (or be reasonably supposed to have had), and everyone else through whom the information was supplied must have also been acting in the course of business.

If the business information was produced in the course of a domestic criminal investigation, then either one of the above five categories (for absent witnesses) must apply, or the person producing the statement cannot be expected now to have any recollection of the original information. A typical example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial. Previous criminal records can be adduced (if otherwise admissible) under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge. [21]

Previous consistent and inconsistent statements

Sometimes during the testimony of a witness, the witness may be questioned about statements he previously made outside court on an earlier occasion, to demonstrate either that he has been consistent or inconsistent in his account of events. The Act did not change the circumstances in which such statements could become admissible in evidence (which are still prescribed in the Criminal Procedure Act 1865), but it did change the evidential effect of such statements once admitted. Formerly, such statements were not evidence of the facts stated in them (unless the witness agreed with them in court): they only proved that the witness had kept his story straight or had changed his story, and so were only evidence of his credibility (or lack of it) as a witness. They were not hearsay. Under the 2003 Act, however, such statements are now themselves evidence of any facts stated in them, not just of credibility, and so are now hearsay.

Preserved common law exceptions

Section 118 of the 2003 Act preserved the following common law rules and abolished the remainder:

Agreement

Hearsay evidence is permitted by agreement between all parties in the proceedings. [22] No such provision existed before the coming into force of the 2003 Act.

Interests of justice

There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In Sparks v R [23] an American airman was accused of indecently assaulting a girl just under the age of four. Evidence that the four-year-old victim (who did not give evidence herself) had told her mother "it was a coloured boy" was held not to be admissible (not being res gestae either) against the defendant, who was white.

In R v Blastland [24] (1986) the House of Lords held in a murder case that highly self-incriminating remarks made by a third party, not at the trial, could not be admitted in evidence (the remarks mentioning the murder of a boy whose body had not yet been independently discovered).

Under the 2003 Act, any hearsay evidence whether or not covered by another provision may be admitted by the court if it is "in the interests of justice" to do so. [25] This provision is sometimes known as the "safety valve".

The Act sets out criteria in determining whether the interests of justice test are met, and provides for consideration of other relevant factors: [26]

  • How much probative value (that is, use in determining the case) the statement has (assuming it to be true), or its value in understanding other evidence;
  • What other relevant evidence has been or can be given;
  • Its importance in the context of the case as a whole;
  • Circumstances in which the statement was made;
  • How reliable the maker of the statement appears to be;
  • How reliable the evidence in the statement appears to be;
  • Whether oral evidence can be given and, if not, why not;
  • The difficulty involved in challenging the statement;
  • The extent to which that difficulty would prejudice the party facing it.

Related Research Articles

<span class="mw-page-title-main">Sixth Amendment to the United States Constitution</span> 1791 amendment enumerating rights related to criminal prosecutions

The Sixth Amendment to the United States Constitution sets forth rights related to criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights. The Supreme Court has applied all but one of this amendment's protections to the states through the Due Process Clause of the Fourteenth Amendment.

Hearsay is testimony from a witness under oath who is reciting an out-of-court statement that is being offered to prove the truth of the matter asserted.

The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.

<span class="mw-page-title-main">Discovery (law)</span> Pre-trial procedure in common law countries for obtaining evidence

Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local variations, or have revised their own evidence rules or codes to at least partially follow the federal rules.

The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

The party admission, in the law of evidence, is a type of statement that appears to be hearsay but is generally exempted (excluded) from the definition of hearsay because it was made by a party to the litigation adverse to the party introducing it into evidence.

Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial. The Federal Rules of Evidence contain the rules governing impeachment in US federal courts.

In the common law, spousal privilege is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

<span class="mw-page-title-main">Criminal Justice Act 2003</span> United Kingdom legislation

The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland. Large portions of the act were repealed and replaced by the Sentencing Act 2020.

In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person. Some secondary authorities, such as Black's Law Dictionary, define a confession in more narrow terms, e.g. as "a statement admitting or acknowledging all facts necessary for conviction of a crime," which would be distinct from a mere admission of certain facts that, if true, would still not, by themselves, satisfy all the elements of the offense. The equivalent in civil cases is a statement against interest.

Hearsay, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted. In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies.

A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may in common law nonetheless be admitted as evidence in criminal law trials because it constituted the last words of a dying person. The rationale is that someone who is dying or believes death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carries with it some reliability.

The Criminal Justice Act 2003 applicable in England and Wales, and to a lesser extent Scotland and Northern Ireland, implemented fundamental changes to the admissibility of evidence relating to character, in respect to defendants and others. The Act is far-reaching, providing for the admissibility of previous convictions in support of a propensity to commit like-offences and untruthfulness. Common law rules in relation to the admissibility of bad character evidence have been abolished, with the existence of one exception.

<i>R v Horncastle</i>

R v Horncastle & Others[2009] UKSC 14 was a decision of the Supreme Court of the United Kingdom regarding hearsay evidence and the compatibility of UK hearsay law with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). The case represents another stage in the judicial dialogue between the European Court of Human Rights (ECtHR) and the higher courts of the United Kingdom about whether it is acceptable to base convictions "solely or to a decisive extent" on evidence made by a witness who is identified but does not appear in court.

The role of expert witnesses in English law is to give explanations of difficult or technical topics in civil and criminal trials, to assist the fact finding process. The extent to which authorities have been allowed to testify, and on what topics, has been debated, and to this end a variety of criteria have evolved throughout English case law.

<span class="mw-page-title-main">Criminal Procedure Act 1865</span> United Kingdom legislation

The Criminal Procedure Act 1865, commonly known as Denman's Act, is an Act of the Parliament of the United Kingdom.

The South African law of evidence forms part of the adjectival or procedural law of that country. It is based on English common law.

<span class="mw-page-title-main">Evidence Act 2006</span> Act of Parliament in New Zealand

The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.

References

  1. (1837) 7 Ad & El 313
  2. Sugden v Lord St Leonards (1876) 1 PD 154; see also Sturla v Freccia, below
  3. 1 2 [1965] AC 1001 at 1021
  4. Jones v Metcalfe [1967] 1 WLR 1286 at 1291
  5. 13th Report of the Law Reform Committee Cmnd 2964 (1966), para 11
  6. Report of the Committee on Supreme Court practice and procedure, Cmnd 8878 (1953)
  7. Thayer, Legal Essays, 1907
  8. R v Olisa [1990] Crim LR 721
  9. 2 St Tr 15
  10. Civil Evidence Act 1995, s. 1.
  11. 1995 c. 38
  12. The Hearsay Rule in Civil proceedings (LC216), Cm 2321 (1993) - see Hearsay Rules in Civil Proceedings, Law Commission
  13. Civil Evidence Act 1995, s.7(2)
  14. ibid s.7(3)
  15. Civil Evidence Act 1995, s.4(2)
  16. Criminal Justice Act 2003, s. 114.
  17. Criminal Justice Act 2003, s.116, formerly in the Criminal Justice Act 1988, s.23
  18. (2003) 26 E.H.R.R. 46, European Court of Human Rights
  19. [2004] 6 Archbold News 2, Court of Appeal
  20. Criminal Justice Act 2003, s.117, formerly in the Criminal Justice Act 1988, s.24
  21. R v Humphris, 169 J.P. 441, Court of Appeal
  22. Criminal Justice Act 2003, s.114(1)c)
  23. [v. The Queen (on appeal from the Supreme Court of Bermuda)] [1963] UKPC 16 (4 December 1963), Privy Council
  24. [1986] AC 41
  25. Criminal Justice Act 2003, s.114(1)(d)
  26. Criminal Justice Act 2003, s.114(2)