Lecture 7 – Admissibility of Evidence (Part 1)
1. Best Evidence Rule
2. Hearsay Rule
3. Evidence unfairly or improperly obtained
1. THE BEST EVIDENCE RULE:
The definition relates to the ‘best evidence rule’, which is that the court requires, particularly the
criminal court, that the very best form of evidence we can give the court is what is placed before it.
DEFINITION: Original / principal evidence must be lodged in Court ‘unless the production of such
evidence is impossible or at least highly impracticable’ :secondary evidence [meaning evidence that is
not of as good quality] is generally inadmissible'.
Anderson v Laverock 1976 JC 9
The case serves to illustrate for us the best evidence rule, because the accused in this case was a
former champion fly caster fisherman, and he was charged with a statutory offence of being in
possession of 26 salmon which the police and prosecutors alleged he had poached. He had also been
accused of catching them using an illegal fishing method, something called a 'cleek or a gaffe', which
was a particular type of tear on the fish. At his trial, he was convicted.
He appealed against his conviction because neither he nor his solicitor were given the opportunity to
examine the fish after they (the fish) were taken into police custody, nor were the fish present in court;
they were disposed of by the police. His conviction was quashed on appeal on the basis that the
accused and his counsel ought to have been able to see the fish to examine them in order to look at
any markings on them.
This is what the court said on appeal (per Lord JusticeClerk (Wheatley) at 13):
‘Whether goods are perishable or whether it is reasonably practicable and convenient to retain them
as primary evidence in the form of a production will depend on the circumstances and evidence in
each particular case.’
Essentially what the police ought to have done is freeze the fish to preserve them. If they weren't able
to do that, they should have taken photographs of the fish, but there should have been some way that
the court could actually have seen them. So that, in fact, the man accused could actually have seen
for himself the basis on which he was being charged with a particular crime.
2. THE HEARSAY RULE:
DEFINITION: ‘An assertion other than one made by a person while giving oral evidence in the
proceedings’ It is not best evidence and is generally inadmissible.
So rather than me telling a neighbour what I saw, and the neighbour go into court and tell the court
what I told them, the court wants to hear from me. That way I can give a first-hand witness account
of what happened, and I can be examined and cross examined in court.
,General rule
Teper v R [1952] AC 480 (submissions to the Judicial Committee at 486)*
‘The rule against the admission of hearsay evidence is fundamental. It 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. Nevertheless, the rule admits of certain carefully safeguarded and
limited exceptions…’
Some Exceptions
Six exceptions to the rule that says hearsay evidence is inadmissible in criminal cases:
a. Overheard conversations generally: truth or atmosphere?
McLaren v McLeod 1913 SC(J) 61
This was a case in which the accused, Mrs McLaren, was charged with running a brothel and at her
trial there was evidence lead by two police officers who had overheard a conversation between two
women. It became quite obvious – according to them, from overhearing that conversation – what the
women did in the brothel, what their role was. However, at the trial, these two women were not called
as witnesses, the police officers spoke about the conversation they had overheard. That is an
overheard conversation so, technically speaking, that is hearsay. An objection was taken to using the
police officer’s testimony at the trial.
This is what the court said in response (per Lord Justice General at 67):*
‘This conviction is objected to on the ground that evidence was improperly admitted. The evidence
which was said to be improperly admitted was, that while the police were listening outside this house
they heard certain conversations going on between some of the inmates, and the prosecutor asked
them what it was they heard. That was objected to upon the ground that it was not said that the
accused the present complainer was present, and that it was not proposed to call the persons who
conducted those conversations.
If the matter depended upon the truth of what was said in the conversations, that, I think would be a
good objection; but I take it that those conversations became relevant, not in respect of their truth,
but of their character. I think they really came into the same category as any noises or exclamations
which were heard and which might have been testified to by those who were watching. The weight
that should be given to them is another matter, but I cannot think it was wrong to admit them.
What this case is actually saying is that evidence of overheard conversations can be admissible. It
might not be as 'weighty' evidence, as helpful or as dependable evidence, as actually hearing from the
people who had the conversation. But it can only be used in one way. It can only be used if the person
who's actually talking about the overheard conversation is giving the court their (own) impression of
the atmosphere created for by them for overhearing that conversation. So it is not to prove the truth
of the conversation that those two were actually having.
So, for example there, the police officers were able to say: yes, we overheard these women talking,
and certainly the impression that we took away from what they were saying was that we were actually
standing outside a brothel, and we can't say that what we said, true or not. But that is our impression
from overheating that conversation.
, I hope that it is clear that there is nothing in this judgment which should foster the idea that hearsay
conversations are to become evidence, with the view of proving what is contained in them. I look upon
this as a mere question of something that shewed what I may call the atmosphere of the place, and
nothing more… therefore, the conviction should stand.’
So that was an objection to admissibility that was ultimately was not held to be a persuasive to the
court.
b. Computer printouts etc – can be admissible
Lord Advocate’s Reference (No 1 of 1992) 1992 SLT 1010
This was a case involving a fraud and it involved Halifax, which is an enormous organisation. At the
trial, it became quite difficult to identify who had actually pressed the button on generating the
computer records of a particular transaction. The normal rules in court is that if there is a documentary
piece of evidence in the form of, for example a letter or a file or another kind of document, then the
court requires that to be ‘spoken to’ (this is the technical term) by the person who wrote it or produced
it. So, someone will actually look at the document and say, e.g., 'yes, I wrote that letter' to the court.
Obviously, though, that wasn't possible in this particular case.
The court said in a big organisation where we cannot really tell who has pressed the button to generate
a bank statement or whatever kind of product has been produced, it is enough that the person in
charge of that department says 'yes, this is an output of my department.' In this particular case, it was
the computer operations controller that the court said could 'speak to' that document as being an
acceptable and valid document - even though it was technically hearsay, because it probably wasn't
him who actually pressed the button on produced it. So computer printouts (and similar processes)
are very valuable exceptions to the inadmissibility of hearsay.
Criminal Procedure (Scotland) Act 1995, s 279: Evidence from documents /
c. ‘Res gestae’ statements (c.f. de recenti’ statements)
‘Res Gestae’ statements literally means “things done” – something that is part of the event. In
contrast, ‘recenti’ statements are statements that happen after the event and they are less likely to
be admissible. Why? Because my account of what happened maybe half an hour or an hour later (i.e.
after the event has ended) to a neighbour is something I can actually talk to my about myself in court
rather than having the neighbour repeat it.
Ratten v R [1972] AC 378 * - old English case
Mr Rattin was convicted for murdering his wife and shooting her. His defence had been that he had
accidentally shot her while he was cleaning his gun. The problem for him is that within minutes of the
gun being fired, just minutes before it, a telephone operator gave evidence at the trial that she
received the call from a hysterical woman who was afraid that she was going to be shot, she was afraid
for her life. then the police were called to the address where the phone call came from and the woman
was found dead. So it's a pretty damning piece of evidence, even though it's technically hearsay
because the telephone operator was talking about something that she overheard and obviously the
woman who said these things to her was deceased, she was the murder victim.
1. Best Evidence Rule
2. Hearsay Rule
3. Evidence unfairly or improperly obtained
1. THE BEST EVIDENCE RULE:
The definition relates to the ‘best evidence rule’, which is that the court requires, particularly the
criminal court, that the very best form of evidence we can give the court is what is placed before it.
DEFINITION: Original / principal evidence must be lodged in Court ‘unless the production of such
evidence is impossible or at least highly impracticable’ :secondary evidence [meaning evidence that is
not of as good quality] is generally inadmissible'.
Anderson v Laverock 1976 JC 9
The case serves to illustrate for us the best evidence rule, because the accused in this case was a
former champion fly caster fisherman, and he was charged with a statutory offence of being in
possession of 26 salmon which the police and prosecutors alleged he had poached. He had also been
accused of catching them using an illegal fishing method, something called a 'cleek or a gaffe', which
was a particular type of tear on the fish. At his trial, he was convicted.
He appealed against his conviction because neither he nor his solicitor were given the opportunity to
examine the fish after they (the fish) were taken into police custody, nor were the fish present in court;
they were disposed of by the police. His conviction was quashed on appeal on the basis that the
accused and his counsel ought to have been able to see the fish to examine them in order to look at
any markings on them.
This is what the court said on appeal (per Lord JusticeClerk (Wheatley) at 13):
‘Whether goods are perishable or whether it is reasonably practicable and convenient to retain them
as primary evidence in the form of a production will depend on the circumstances and evidence in
each particular case.’
Essentially what the police ought to have done is freeze the fish to preserve them. If they weren't able
to do that, they should have taken photographs of the fish, but there should have been some way that
the court could actually have seen them. So that, in fact, the man accused could actually have seen
for himself the basis on which he was being charged with a particular crime.
2. THE HEARSAY RULE:
DEFINITION: ‘An assertion other than one made by a person while giving oral evidence in the
proceedings’ It is not best evidence and is generally inadmissible.
So rather than me telling a neighbour what I saw, and the neighbour go into court and tell the court
what I told them, the court wants to hear from me. That way I can give a first-hand witness account
of what happened, and I can be examined and cross examined in court.
,General rule
Teper v R [1952] AC 480 (submissions to the Judicial Committee at 486)*
‘The rule against the admission of hearsay evidence is fundamental. It 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. Nevertheless, the rule admits of certain carefully safeguarded and
limited exceptions…’
Some Exceptions
Six exceptions to the rule that says hearsay evidence is inadmissible in criminal cases:
a. Overheard conversations generally: truth or atmosphere?
McLaren v McLeod 1913 SC(J) 61
This was a case in which the accused, Mrs McLaren, was charged with running a brothel and at her
trial there was evidence lead by two police officers who had overheard a conversation between two
women. It became quite obvious – according to them, from overhearing that conversation – what the
women did in the brothel, what their role was. However, at the trial, these two women were not called
as witnesses, the police officers spoke about the conversation they had overheard. That is an
overheard conversation so, technically speaking, that is hearsay. An objection was taken to using the
police officer’s testimony at the trial.
This is what the court said in response (per Lord Justice General at 67):*
‘This conviction is objected to on the ground that evidence was improperly admitted. The evidence
which was said to be improperly admitted was, that while the police were listening outside this house
they heard certain conversations going on between some of the inmates, and the prosecutor asked
them what it was they heard. That was objected to upon the ground that it was not said that the
accused the present complainer was present, and that it was not proposed to call the persons who
conducted those conversations.
If the matter depended upon the truth of what was said in the conversations, that, I think would be a
good objection; but I take it that those conversations became relevant, not in respect of their truth,
but of their character. I think they really came into the same category as any noises or exclamations
which were heard and which might have been testified to by those who were watching. The weight
that should be given to them is another matter, but I cannot think it was wrong to admit them.
What this case is actually saying is that evidence of overheard conversations can be admissible. It
might not be as 'weighty' evidence, as helpful or as dependable evidence, as actually hearing from the
people who had the conversation. But it can only be used in one way. It can only be used if the person
who's actually talking about the overheard conversation is giving the court their (own) impression of
the atmosphere created for by them for overhearing that conversation. So it is not to prove the truth
of the conversation that those two were actually having.
So, for example there, the police officers were able to say: yes, we overheard these women talking,
and certainly the impression that we took away from what they were saying was that we were actually
standing outside a brothel, and we can't say that what we said, true or not. But that is our impression
from overheating that conversation.
, I hope that it is clear that there is nothing in this judgment which should foster the idea that hearsay
conversations are to become evidence, with the view of proving what is contained in them. I look upon
this as a mere question of something that shewed what I may call the atmosphere of the place, and
nothing more… therefore, the conviction should stand.’
So that was an objection to admissibility that was ultimately was not held to be a persuasive to the
court.
b. Computer printouts etc – can be admissible
Lord Advocate’s Reference (No 1 of 1992) 1992 SLT 1010
This was a case involving a fraud and it involved Halifax, which is an enormous organisation. At the
trial, it became quite difficult to identify who had actually pressed the button on generating the
computer records of a particular transaction. The normal rules in court is that if there is a documentary
piece of evidence in the form of, for example a letter or a file or another kind of document, then the
court requires that to be ‘spoken to’ (this is the technical term) by the person who wrote it or produced
it. So, someone will actually look at the document and say, e.g., 'yes, I wrote that letter' to the court.
Obviously, though, that wasn't possible in this particular case.
The court said in a big organisation where we cannot really tell who has pressed the button to generate
a bank statement or whatever kind of product has been produced, it is enough that the person in
charge of that department says 'yes, this is an output of my department.' In this particular case, it was
the computer operations controller that the court said could 'speak to' that document as being an
acceptable and valid document - even though it was technically hearsay, because it probably wasn't
him who actually pressed the button on produced it. So computer printouts (and similar processes)
are very valuable exceptions to the inadmissibility of hearsay.
Criminal Procedure (Scotland) Act 1995, s 279: Evidence from documents /
c. ‘Res gestae’ statements (c.f. de recenti’ statements)
‘Res Gestae’ statements literally means “things done” – something that is part of the event. In
contrast, ‘recenti’ statements are statements that happen after the event and they are less likely to
be admissible. Why? Because my account of what happened maybe half an hour or an hour later (i.e.
after the event has ended) to a neighbour is something I can actually talk to my about myself in court
rather than having the neighbour repeat it.
Ratten v R [1972] AC 378 * - old English case
Mr Rattin was convicted for murdering his wife and shooting her. His defence had been that he had
accidentally shot her while he was cleaning his gun. The problem for him is that within minutes of the
gun being fired, just minutes before it, a telephone operator gave evidence at the trial that she
received the call from a hysterical woman who was afraid that she was going to be shot, she was afraid
for her life. then the police were called to the address where the phone call came from and the woman
was found dead. So it's a pretty damning piece of evidence, even though it's technically hearsay
because the telephone operator was talking about something that she overheard and obviously the
woman who said these things to her was deceased, she was the murder victim.
