Evidence - Hearsay

1. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
All parties to the proceedings agree
s114(1)(c)
Any provision of this
Chapter…makes it admissible
114(1)(a)
UNAVAILABLE WITNESSES
s116
(a) Dead
(b) Unfit because of bodily/mental condition
(c) Outside UK and not RP to secure attendance
(d) Cannot be found although RP steps taken
(e) fear* (leave needed – see 116(4))
BUSINESS DOCUMENTS
s117
(1) Could supplier of information reasonably be
supposed to have personal knowledge of matters?
(2) Was each person through whom information was
then supplied acting in the course of business?
(3) Was the document containing the statement
created in the course of business?
(4) Is the document reliable? Look at:
 Contents
 Source of information
 The way info was received/supplied
 The way doc was created/received
(5) If doc created for purposes of crim
proceedings/investigation is either:
(a) s116(2) satisfied?; or
(b) the supplier of the information cannot be
expected to have recollection of the matters.
Interests of Justice
s114(1)(d)
PREVIOUS INCONSISTENT
STATEMENTS
s119
PREVIOUS CONSISTENT
STATEMENTS
s120
Rebut fabrication s120(2)
Past recollection recorded…
s120(4)
(1) Statement identifies a person, object or place
(2) W cannot remember & cannot reasonably be expected
to remember the matters recorded
(3) C’s statement contains a complaint about at least part
of the offence
S120(5),(6),(7)
(a) Probative value
(b) Whether other evidence can be given
(c) Importance of the evidence
(d) circumstances of making
(e) reliability of maker
(f) reliability of evidence of making of statement
(g) whether oral evidence can be given, if not, why
not?
(h) difficulty in challenging statement
(i) prejudice to party caused by difficulty of
challenge
s114(2)
Preserved common
law s114(1)(b), s118
Public information
Reputation as to character
Reputation or family tradition
Res gestae
Confessions
Admissions by agents
Common enterprise
Expert evidence

2. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
s
May adduce evidence re W’s Credibility
s124
Capability to make statement
s123
 To be determined in absence of
jury;
 Expert evidence may be received;
 Burden lies on party seeking to
adduce statement on ‘BoP’
s123(4)
Is person capable of
(a) Understanding Qs put to him about
matters stated; and
(b) Giving answers to such Qs which
can be understood?
s123(3)
s117
Inadmissible if supplier or
recipient of information:
(a) Did not have required
capability at the time of
 supply/receipt of info;
 creation of document;
or
(b) Cannot be identified but
cannot reasonably be
assumed to have had the
capacity at the time
s123(2)
General discretion to
exclude evidence
s126
(a) that would have been admissible
had W been there:
 s100 CJA 2003 (bad character)
 Exceptions to rule of finality
(a) Previous convictions
(b) Bias
(c) Reputation for untruthfulness
(d) Disability affecting reliability
(b) that would have been caught by the
rule of finality had W been at court
 E.g. poor language skills
Stopping case where
evidence unconvincing
s125
If after close of prosecution
case court is satisfied that:
(a) Case against D is based
wholly/party on hearsay
statement
(b) the evidence provided is
so unconvincing that,
considering its importance to
the case against D, his
conviction would be unsafe
the court must:
(1) direct jury to acquit D;
or
(2) if it considers there
ought to be a retrial,
discharge the jury.
s125(1)
s116/119/120
Inadmissible if statement
made by a person who did
have capability at time of
making statement.
s123(1)
(c) Evidence of previous inconsistent
statement.
 Normally P.I.S. proved by putting it to
witness (s3,4,5 Crim Procedure Act
1865)
 If W not present you cannot go through
this procedure.
the case for excluding
the statement
substantially outweighs
the case for admitting it,
taking account of
(a) the value of the
evidence
(b) the danger that to
admit it would
result in undue
waste of time
s126(1)
Note also:
(a) s78 PACE
(b) Common law
discretion
s126(2)

3. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
TONY & BRIAN
 Tony is supplying the information that forms the basis of the statement. He
fitted it and so he could be supposed to have first hand knowledge.
 He has written the statement in the course of business.
S117(2)
 It appears that the statement is reliable and therefore will be admissible.
S117(6/7)
 The statement has been prepared for the purposes of pending criminal
proceedings, but Tony is ill and therefore s116(2)(b) is satisfied.
S117(4/5)
Brian:
"I had a hands-free kit
fitted in April 2016”
Tony:
"I clearly recall fitting it.”
It was my birthday. I will
write you a statement
from my recollection.

4. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
TONY & BRIAN
The supplier of the information could be supposed to have first hand knowledge.
 Tony has received the information in the course of business. He is deemed to
be so disinterested that he won’t distort what he has been told by Brian when
making the statement.
 However, the statement has been prepared for criminal proccedings and
because Brian has supplied the information and is available and can reasonably
be expected to recall the matters stated in the document, the conditions of s
117(5) are not met. Accordingly the statement will be inadmissible.
 Note also the conidtions of admissibility concerning reliability: documentary
hearsay will be inadmissible if the statement’s reliability is doubtful in view of:
(a) Its contents
(b) The source of information contained within it.
(c) The circumstances in which the information was received.
s117(6/7)
Brian:
"I had a hands-free kit
fitted in April 2016”
Tony:
"I don’t recall it and I
haven’t got access to
my computer, but
alright sir, I’ll write you
a note… just give me
the details, sir… ”

5. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
BUSINESS RECORDS
The supplier of the information could be supposed to have first hand knowledge.
 Jana has received the information in the course of business. She is deemed to
be so disinterested that she won’t distort what he has been told by Dave when
typing the information.
 Sat has received the information in the course of business. He is deemed to be
so disinterested that he won’t distort what he has been told by Jana when typing
the information.
Dave:
"I fitted Brian’s Hands-Free Kit
today, 11/08/16. I passed the
information to Jana.
Jana:
"I entered the details on
our customer computer
record”. I passed the
information to Sat.
Sat:
"I entered the details on
our computer record which
gets passed to head office.

6. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
BUSINESS RECORDS
The supplier of the information could be supposed to have first hand knowledge.
Jana received the information in the course of business, but has Elaine?
If she was deemed not to have received it in the course of business, the evidence will
not be admissible (s117(2)). However, it might argued that because Jana and Elaine are
work colleagues, the information was about work and Elaine was going to enter the
information at work next day, the information has been received in the course of a trade,
business, profession, albeit that it was received in the pub. The following scenario is
more clear-cut.
Dave:
"I fitted Brian’s Hands-Free Kit
today, 11/08/16. I passed the
information to Jana.
Jana:
"I was going to enter the
information on to the computer
system but I forgot.
Elaine:
I was at the pub with Jana. She
told me that she had forgotten to
enter the information on to the
system. I said I would do it the
next day. She told me what I
needed to enter.

7. EVIDENCE-02-HEARSAY-1617 © City, University of London 2017
BUSINESS RECORDS
The supplier of the information could be supposed to have first hand knowledge.
 Jana received the information in the course of business, but Sophie did not.
 Sophie therefore cannot be said to have the disinterest that comes from
receiving information in the course of business.
 The evidence will not be admissible (s117(2)).
Dave:
"I fitted Brian’s Hands-Free Kit
today, 11/08/16. I passed the
information to Jana.
Jana:
"I was going to enter the
information on to the computer
system but I forgot.
Sophie:
I was at the pub with Jana who is my
flat mate. She told me that she had
forgotten to enter the information on
to the system and she told me what
the information was. Jana was ill
with flu the next day and she asked
me to phone her work on her behalf
to explain she was ill and also asked
me to pass on the information to be
entered on the computer, which I did.