Hearsay evidence refers to statements made outside of court that are presented verbally in court as evidence. Under UK law, hearsay evidence is generally not admissible but there are exceptions. Dave's statement to police would normally be considered hearsay but could be allowed as evidence in this case since Dave has moved to Australia and securing his attendance in court is not reasonably practical. The court has discretion to exclude evidence if it would be unfair to the defendant, considering their right to cross-examine witnesses. As a child witness, the key question is whether the child is competent to be understood as a witness. Special measures may be taken to help vulnerable or intimidated witnesses give evidence.

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EVIDENCE
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QUESTION A:
This part will look at what constitutes hearsay evidence and it’s admissibility under
the Criminal Justice Act 2003.
Hearsay under section 114(1)1 is defined as a statement not made in oral evidence
in the proceedings admissible as evidence of any matter stated. Oral evidence
includes evidence which by reason of any disability, disorder or other impairment is
given in writing, by signs or by way of any device by a person called as a witness 2.
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Chandrasekera v R it was held that the woman effectively stated that the accused
had cut her by nodding her head. A statement is any representation of fact or opinion
made by a person by whatever means including a representation made in sketch,
photofit or pictorial form4. A matter stated is one which is stated for the purpose of
causing another person to believe the matter or cause another person to act or a
machine to operate on the basis that the matter is as stated5. Section115(2) gives
light on the present position whereby statements which are not based on human
input falls outside the ambit of the hearsay rule, therefore objects such as tapes,
films or photographs which directly record the commission of an offence and
documents produced by machines which automatically record a process or event are
excluded from hearsay evidence6. Therefore from our scenario the film automatically
recorded by a security camera would not be under hearsay but will be real evidence.
Thus in R v Spiby7 a print out from a computerised machine which automatically
recorded information such as duration of calls was admitted as real evidence.
In deciding whether such evidence is admissible, section 69 8provides that a
statement in a document produced by a computer is not admissible as evidence in
criminal legal proceedings unless it can be shown that there are no reasonable
grounds for believing that the statement is inaccurate because of improper use of the
computer; and at all times the computer was operating properly or, if not, that any
respect in which it was not operating properly or was out of operation did not affect
1 Criminal Justice Act 2003
2 Section 134(1) CJA 2003
3 [1937] AC 220, PC
4 Section 115(2)CJA 2003
5 Section 115(3)
6 Keane. A, Modern Law of Evidence, 7th edn, Oxford University Press, New York, 2008 pg 282
7 [1990] 91 Cr App R 186, CA
8 Police and Criminal Evidence Act 1984
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the production of the document or the accuracy of its contents. In Castle v Cross
held that the printout was admissible and the sergeant was entitled to give evidence
of all that he had observed and interpreting if necessary the printout. Therefore it can
be suggested that the film provided by Dave can be admissible so long as it is
accurate and that at all times the computer was operating properly. This is well
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illustrated in the case of Taylor v Chief Constable of Cheshire which involved an
out of court video cassette recording by a security camera which showed a person
shoplifting, it was played to the police who identified the person shown as Taylor but
when it was returned to the shop it was accidentally erased from the cassette. The
officers were allowed to give evidence of what they had seen on the video and
Taylor was convicted of theft but on appeal it was argued that the evidence of the
officers was hearsay because they did not witness the incident personally or directly.
The appeal was dismissed on grounds that what the officers saw on the video was
no less than the evidence of a bystander who witnessed the incident by direct vision.
For this reason Dave will be permitted to give evidence at trial of what he saw on the
film.
QUESTION B:
This question will explain the admissibility of hearsay statements in cases where a
witness is unavailable, look at situations where the court has a general discretion to
exclude evidence and also look at the exclusion of unfair evidence under section 78
of PACE in relation to Article 6(d) of the European Convention of Human Rights.
“Hearsay is not the best evidence and it is not delivered on oath. The truthfulness
and accuracy of the person whose words are spoken to by another witness cannot
be tested by cross-examination, and the light which his demeanour would throw on
his testimony is lost.”11 Hearsay is suggested to be the best evidence available
where the original evidence can no longer be produced12. The written statement
given to the police by Dave is thus suggested to be a hearsay statement. Section
116(1, 2, 3, 4) provides that in a criminal proceeding hearsay evidence is admissible
9 [1985] 1 All ER 87
10 [1987] 1 All ER 225
11 Teper v R [1952] AC 480 per Lord Normand at 486
12 Law Commission’s Evidence in Criminal proceedings: Hearsay and Related Topics, 10 February 1996 pg
23 (paragraph 3.2)
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if oral evidence given by the person who made the statement would be admissible as
evidence of that matter and the person who made the statement must be identified to
court’s satisfaction. In cases of unavailability of the witness, hearsay will be
admissible if the relevant person is dead, unfit to be a witness because of his bodily
or mental condition, is outside the United Kingdom and is not reasonably practicable
to secure his attendance, cannot be found although reasonable practical steps have
been taken to find him, due to fear relevant person does not give or does not
continue to give oral evidence so the courts give leave for the statement to be given
in evidence. Leave is to be given only if the courts consider that the statement is to
be admitted in the interest of justice having regard to statement’s contents, risk of
unfairness to the proceedings to any party to the proceedings.
Since Dave has moved to Australia, the criterion used is section 116(2)(c) where the
statement is admissible when the relevant person is outside the United Kingdom and
it is not reasonably practicable to secure his attendance. The person seeking to rely
on the evidence should make reasonable efforts to bring the person required to
court13, but also enable the court to take into account all the circumstances of the
case to include the expense of adducing the evidence by alternative procedures, the
seriousness of the case, and the importance of the information in the statement.
Another factor to be considered is whether it would be reasonably practicable to
secure the evidence for trial at a later date14 thus in R v Bray 15 it was not reasonably
practicable to secure the attendance of a person who was overseas for some
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months before the trial begun. Also in R v C it was held that what is reasonably
practicable should be judged on the steps taken by the party to ensure the
attendance of the witness. Therefore the police are to show in court that they took
reasonably practicable steps to ensure Dave’s attendance.
Because Dave is not available to give oral evidence, he cannot be cross-examined
to show his competence nor his credibility which is equally important in the
proceedings as Article 6(3)(d)17 provide that the accused has the right to examine or
13 R v Gonzales de Arango (1991) 96 Cr App R 299, 403–404, per McCowan LJ
14 Law Commission’s Evidence in Criminal proceedings: Hearsay and Related Topics, 10 February 1996
104
15 [1988] 88 Cr App R 354
16 [2006] Crim LR 637, CA
17 The European Convention of Human Rights
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have examined witness against him. In R v Al-Khawaja18 it was argued that Article
6(3)(d) is one of the specific aspects of a fair trial so if that right was denied then the
question would be if the proceedings as a whole would be fair. The European Court
has recognised that the Article 6(3)(d) right is not absolute, and much will depend on
whether the defence has the opportunity to challenge, at some stage, the missing
witness19. Under section 126(1) the court has discretion to exclude evidence if the
statement was made as hearsay and if excluding the evidence outweighs the case
for including it.
As a result, Dave’s statement under section 116(2)(c) would be admissible as he is
outside the United Kingdom but it is up to court to decide if it would be excluded.
QUESTION C:
This section will deal with a child witness and look at the competence of the child in
giving evidence and special measures directions given by the court to vulnerable and
intimidated witnesses.
Section 53(1)20 states that at every stage in criminal proceedings all persons are
(whatever their age) competent to give evidence unless it appears to the court that
the person is not able to understand the questions given to him as a witness and
s/he cannot give answers to them which can be understood21. In R v MacPherson22
it was held that an infant who can only communicate in baby language will not be
competent but a child who can speak and understand Basic English will be
competent. It was also held in R v D23 that a person will be treated as incompetent if
he is unable to distinguish truth from fiction or fact from fantasy. The question
whether the witness is competent to give evidence will be raised either by the party
to the proceedings or the court out of its own motion24, it would therefore be up to the
party calling the witness to satisfy the court that, on the balance of probabilities, the
18 [2006] 1 WLR 1078, CA
19 David Ormerod: Hearsay pg 28 paragraph 6.13
20 Youth Justice and Criminal Evidence Act 1999
21 Section 53(3) YJCEA 1999
22 [2006] 1 Cr App R 459, CA
23 [2002] 2 Cr App R 55
24 Section 54(1) of the Youth Justice and Criminal Evidence Act 1999
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witness is competent25. Rhian is thus competent to give evidence in criminal
proceedings but if the competence is challenged then it’s up to the police to prove
that she is competent. Because she has not attained the age of fourteen her
evidence will not be sworn evidence26.
A witness under the age of seventeen at the time of the hearing is eligible for
assistance27. The court must determine whether any of the special measures
available in relation to the witness would be likely to improve the quality of evidence
given by the witness and if so determine which of those measures would be likely to
maximise the quality of such evidence and to give a direction providing for the
measure to apply to the evidence given by the witness. The special measures
available for children under 17 are under sections 23 to 29.These are screening
witness from accused, evidence of live link, evidence given in private, removal of
wigs and gowns, video recorded evidence in chief, video recorded cross examination
or re-examination and examination of witness through intermediary. Section 28 video
recorded cross examination and re-examination has never been brought into force.
Under section 21(3) the courts must in the case of a child witness give special
measures directions in a way that it provides for any relevant recording to be
admitted under section 27 (video recorded evidence in chief) and it must provide for
any evidence given by the witness which is not given by means of a video recording
to be given by a means of a live link in accordance with section 24. Live link means a
live television link or other arrangements whereby a witness, while absent from the
court room is able to see and hear a person there and be also be seen and heard by
the judge or justice and the jury28.
Accordingly, Rhian has several special measures which can be used in court as she
is a vulnerable witness and is eligible for assistance on grounds of age. Since she is
nervous, a special measure through evidence by live link under section 24 is
suggested to be the best measure to be used in her situation.
QUESTION D:
25 Section 54(2)YJCEA 1999
26 Section 55(2)(a)
27 Section 16(1)(a)
28 Section 24(8) YJCEA 1999
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This question will look at Inconsistent statements and if they can be admissible as
evidence under hearsay.
If a person gives oral evidence and he admits making a previous inconsistent
statement or a previous inconsistent statement made by him is proved by virtue of
section 3, 4 or 5 of the Criminal Procedure Act 1865, the statement is admissible of
any matter stated of which oral evidence by him would be admissible 29. Section 3, 4
and 5 shows that when a witness does not admit to making the previous statement
(is being hostile) then proof can be given that they did in fact make the statement.
The new position is that once the statement is admitted it becomes evidence of the
truth of matters stated in it if oral evidence of that matter would be admissible. R v
30
Joyce Joyce the defendant was positively identified by several witnesses who
made detailed statements setting out the certainty of their identification. At trial the
witnesses all claimed that they were now uncertain as to their identification, contrary
to their previous statements. The clear inference was that the witnesses had been
put under pressure to change their evidence. The judge admitted the previous
statements as evidence of the original identifications and the jury convicted on the
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basis that these statements were true. But on the other hand, in R v W where Mrs
W had previously stated to the other people including her neighbour that her son had
pushed her down the stairs and set fire to her hair, when cross-examined said he
never did and that she slid and fell on the stairs, it was held that admitting evidence
without making Mrs W available to the defence for cross-examination would have
had such an adverse effect on the fairness of the proceedings that the evidence
ought not to be admitted.
Steve’s statement to the police is inconsistent with his statement in cross
examination, on one hand if he was put under pressure which caused him to change
his mind then that evidence would be admissible, but if under section 7832 having
regard to all circumstances including circumstances in which the evidence was
obtained the admission of the evidence would cause such an adverse effect on the
29 Section 119(1) Criminal Justice Act 2003
30 2005] EWCA 1785
31 The Times 2 May, (2003)
32 Police and Criminal Evidence Act 1984
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fairness of the proceedings then the court would not admit it. It is the court’s decision
on whether to include or exclude the statement given to the police as evidence.
QUESTION E:
This question will deal with admissibility of the defendant’s bad character in relation
to her previous convictions. It will look at what constitutes bad character, the rules
relating to the admissibility of bad character evidence and circumstances when
evidence of bad character would be excluded.
Bad character is defined as evidence of, or of a disposition towards, misconduct33.
Misconduct means the commission of an offence or other reprehensible conduct34. In
R v Bowell and Dowds35 it was emphasised that evidence of previous conviction
whether in relation to the accused or some other person must be made available to
all parties in good time in order to make a decision as to the admissibility of the
conviction. The definition of bad character is wide enough to apply to conduct arising
out of a conviction, or conduct where there has been an acquittal36. This was the
case in R v Z37 where the defendant was being charged with rape and the court
adduced evidence of previous charge of rape which was acquitted. In criminal
proceedings evidence of the defendant’s bad character is admissible38. The
defendants bad character is admissible if all parties agree that it should be39, section
101(1)(b) provides that it is admissible if it is adduced by the defendant himself or on
his behalf or if it is elicited by cross-examination on his behalf. It is also admissible if
it is important explanatory evidence, evidence is important explanatory evidence if
without it the court or jury would find it difficult to understand other evidence in the
case and its value for understanding the case as a whole is substantial 40.In R v
Edwards41 a statement of an identification witness that she was able to recognise the
33 Section 98 Criminal Justice Act 2003
34 Section 112(1) CJA 2003
35 [2005] 2 Cr App R 27
36 http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/#a03, 28/02/2010
37 [2000] 2 Cr App R 281
38 Section 101(1) CJA 2003
39 Section 101(1)(a) CJA 2003
40 Section 101(1)(c) and 102
41 [2006] 1 Cr App R 3
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defendant because she used to buy heroin from him was held as important
explanatory evidence in relation to the basis of her identification.
Section 101(1)(d) explains that evidence of defendant’s bad character is admissible
if it is relevant to an important matter in issue between the defendant and the
prosecution. Matters in issue between the defendant and the prosecution include
whether the defendant has a propensity to commit offences of the kind or has a
propensity to be untruthful42. Offences of a kind are established by evidence that
s/he has been convicted of an offence of the same description as the one with which
he is charged or of the same category as prescribed by order of the Secretary of
state but the longer the length of time since conviction the less likely to be
admitted43.
With propensity to commit offenses of the kind with which is charged R v Nguyen44
showed that evidence of propensity is not restricted to previous convictions when the
prosecution was allowed to introduce the fact that he had glassed someone else
days before the fight in the pub where he also glassed M. It was held that this
showed he had propensity to commit violent offences. Another important case is that
of R v Brima45 in a murder case, two previous convictions of assault one involving
actual stabbing and the other robbery involving holding a knife to victim’s throat were
capable of establishing propensity to commit offenses charged and made it more
likely that B had committed the offence charged. In relation to our scenario,
Carolyn’s previous convictions under gateway D (section 101(1)(d)) can be admitted
to show propensity to commit offences of the same kind as she was convicted of
assault and criminal damage. But if having such a propensity makes her seem to be
guilty of the offence other than showing her likelihood of committing such an offence
then her previous convictions would be inadmissible46 and the court ought not to
admit it if its admission would have such an adverse effect on the fairness of the
proceedings.47
48
R v Hanson provides that the jury should be directed that: they should not
conclude that the accused is guilty merely because s/he has previous convictions,
42 Section 103(1) CJA 2003
43 Section 103(2)-(4)
44 [2008] EWCA Crim 585
45 [2007] 1 Cr App R 316, CA
46 Section 103(1)(a)
47 Section 101(3)
48 [2005] 2 Cr App R 21
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that although the convictions may show propensity, it does not mean that s/he
committed this offence, that jury should decide whether they actually show
propensity, that they must take into account what the defendant said about his
previous convictions and that they should take into account all the other evidence in
the case49.
Other sections for admissibility of previous convictions are important matter in issue
between the defendant and co-defendant (e), if it is evidence to correct a false
impression given by defendant (f) and where defendant attacks another person’s
character (g)50.
Thus Carolyn’s previous convictions can be admitted under Section 101(1) but is
suggested that gateway D could be more appropriate as it has more likeliness of
being admissible but it is also up to the jury to decide if they do show propensity.
49 Keane. A, Modern Law of Evidence, 7th edn, Oxford University Press, New York, 2008pg 483
50 Section 101(1)
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BIBLIOGRAPHY:
Keane. A, Modern Law of Evidence, 7th edn, Oxford
University Press, New York, 2008
Law Commission’s Evidence in Criminal proceedings:
Hearsay and Related Topics, 10 February 1996
David Ormerod: Hearsay
http://www.cps.gov.uk/legal/a_to_c/bad_character_evide
nce/#a03, 28/02/2010
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