Hearsay Evidence
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• Hearsay Evidence in Criminal Cases
• type of evidence outside the courtroom
• For example:
– The defendant denies being at or around the crime scene on the night of the
attack.
– Marc tells Paul that he saw the defendant at the crime scene on the night of
the attack.
– Marc refuses to give evidence at court, and goes into hiding.
• Traditionally governed by Common law. Now it is codified within CJA 2003
• YET CERTAIN common rules still remain – applicable if specifically endorsed by
statute
• This is the context of criminal law – more hesitant – civil law it is easier
Criminal Evidence: History of Hearsay
• Common law problems:
– General uncodified complexity; made it harder
– Led to excluded even important defence evidence;
– Lack of clarity about when hearsay arose;
– Quality of evidence not taken into account;
– Implied assertions were considered hearsay
The Criminal Justice Act 1988
Sparks [1964] AC 964 (PC):
D was a white US air force officer, charged with indecent assault of a 4yo girl victim
Vicitm did not appear to give evidence
But d wanted to call victims mother – for hearsay evidence bc victim has told mother
after she had been attacked by a coloured man
D wanted to use that evidence to give some doubt to his liability
Court found it was excluded as it was strict hearsay evidence – without witness being
able to be cross examines
Didn’t fall into narrow exceptions either
Highly criticised case
Blastland [1986] AC 41:
D convicted or raping and murdering 12yo boy
D was refused leave to call witness to a third party who said boy was murdered
before he was found – so before it was known –
this suggests they were potentially culpable – should raise doubts to d’s liability
But this evidence was not held not to be admissible
Again risk of inappropriate unfair convictions
,Osbourne and Virtue [1973] QB 678:
One witness at trial couldn’t remember picking someone out of a lineup
The other could remember but didn’t recognise d as the one she had picked out
when it came to trial
Confused at trial
Court allowed police officer to inform courts about exactly what each witness had
said and done in terms of who they picked and said
Seems broadly appropriate but is definitely hearsay
Said outside of the courtroom
Yet it was allowed bc broadly appropriate but was definitely hearsay still
Issue of lack of clarity in law - sometimes hearsay discussed when not necessary and
evidence not presented bc incorrect presumption that it would’ve been excluded as
hearsay had it been so
Goldstone and McGlasham [2000] 4 LRC 460:
D accused of shooting woman in jaw and killing partner while they were in bed
At time she was in hospital for jaw treatment, was sewn shut so she wrote names on
paper
Names important, she was available at time of trial to be cross examined – yet the
notes were not used as evidence, from some misguiding assumption from council
that this was going to be hearsay
Overly strict approach might exclude evidence
Mayers v DPP [1965]:
D committed offence related to car rigging
Main evidence was microfilm of car records with stolen engine block numbers on
them
Numbers were written by unidentified workmen so were hearsay
But they were very important yet still excluded even though no one doubted they
were authentic and their relevance to trial
Kearley [1992] 2 AC 228:
Police raided flag or drug dealer or potentially who they had been watching
Unfortunately for them they found insufficient amounts of drugs to infer dealing –
lacking physical evidence
But during searching no fewer than 10 people called and 7 knocked on the door
asking for the d and for drugs
So, although no physical evidence, had these people
Rather than using them as witnesses, prosecution used the police officers reporting
what had happened – so looked like an issue of hearsay
, Have to q whether it should be hearsay bc people didn’t say he is a drug dealer,
rather they turned up asking for drugs – was implied not expressed statement
Was a q whether implied q of this kind should fall outside of hearsay rule
But still it was excluded in the hL
General rule on Hearsay
• Criminal Justice Act 2003, s.114
• (1) In criminal proceedings a statement not made in oral evidence in the proceedings
is admissible as evidence of any matter stated if, but only if:
– (a) any provision of this Chapter or any other statutory provision makes it
admissible;
– (b) any rule of law preserved by section 118 makes it admissible;
– (c) all parties to the proceedings agree to it being admissible; or
– (d) the court is satisfied that it is in the interests of justice for it to be
admissible.
Law Commission, Evidence in criminal proceedings: hearsay and related topics (Law Com
No. 245, 1997); Auld, Review of Criminal Courts of England and Wales (2001, Cm 5563).
Current hearsay rules now – for questions
Subsection a –d give exceptions to hearsay
Law commission interpreted report as a narrow safety net but will see interpretation of
it is more expansive
What is Hearsay?
• CJA 2003, s.114(1): In criminal proceedings a statement not made in oral evidence in
the proceedings is admissible as evidence of any matter stated if, but only if…
• CJA 2003, s.115
– (2): A statement is any representation of fact or opinion made by a person by
whatever means; and it includes a representation made in a sketch, photofit
or other pictorial form.
– (3) A matter stated is one to which this Chapter applies if (and only if) the
purpose, or one of the purposes, of the person making the statement
appears to the court to have been:
– (a) to cause another person to believe the matter; or
– (b) to cause another person to act or a machine to operate on the basis that
the matter is as stated.
Statement set out need not be oral – all the others can be excluded too
Second part – when something said out of the court will not automatically classified as
hearsay
Bottom of page shows steps to follow
• Hearsay Evidence in Criminal Cases
• type of evidence outside the courtroom
• For example:
– The defendant denies being at or around the crime scene on the night of the
attack.
– Marc tells Paul that he saw the defendant at the crime scene on the night of
the attack.
– Marc refuses to give evidence at court, and goes into hiding.
• Traditionally governed by Common law. Now it is codified within CJA 2003
• YET CERTAIN common rules still remain – applicable if specifically endorsed by
statute
• This is the context of criminal law – more hesitant – civil law it is easier
Criminal Evidence: History of Hearsay
• Common law problems:
– General uncodified complexity; made it harder
– Led to excluded even important defence evidence;
– Lack of clarity about when hearsay arose;
– Quality of evidence not taken into account;
– Implied assertions were considered hearsay
The Criminal Justice Act 1988
Sparks [1964] AC 964 (PC):
D was a white US air force officer, charged with indecent assault of a 4yo girl victim
Vicitm did not appear to give evidence
But d wanted to call victims mother – for hearsay evidence bc victim has told mother
after she had been attacked by a coloured man
D wanted to use that evidence to give some doubt to his liability
Court found it was excluded as it was strict hearsay evidence – without witness being
able to be cross examines
Didn’t fall into narrow exceptions either
Highly criticised case
Blastland [1986] AC 41:
D convicted or raping and murdering 12yo boy
D was refused leave to call witness to a third party who said boy was murdered
before he was found – so before it was known –
this suggests they were potentially culpable – should raise doubts to d’s liability
But this evidence was not held not to be admissible
Again risk of inappropriate unfair convictions
,Osbourne and Virtue [1973] QB 678:
One witness at trial couldn’t remember picking someone out of a lineup
The other could remember but didn’t recognise d as the one she had picked out
when it came to trial
Confused at trial
Court allowed police officer to inform courts about exactly what each witness had
said and done in terms of who they picked and said
Seems broadly appropriate but is definitely hearsay
Said outside of the courtroom
Yet it was allowed bc broadly appropriate but was definitely hearsay still
Issue of lack of clarity in law - sometimes hearsay discussed when not necessary and
evidence not presented bc incorrect presumption that it would’ve been excluded as
hearsay had it been so
Goldstone and McGlasham [2000] 4 LRC 460:
D accused of shooting woman in jaw and killing partner while they were in bed
At time she was in hospital for jaw treatment, was sewn shut so she wrote names on
paper
Names important, she was available at time of trial to be cross examined – yet the
notes were not used as evidence, from some misguiding assumption from council
that this was going to be hearsay
Overly strict approach might exclude evidence
Mayers v DPP [1965]:
D committed offence related to car rigging
Main evidence was microfilm of car records with stolen engine block numbers on
them
Numbers were written by unidentified workmen so were hearsay
But they were very important yet still excluded even though no one doubted they
were authentic and their relevance to trial
Kearley [1992] 2 AC 228:
Police raided flag or drug dealer or potentially who they had been watching
Unfortunately for them they found insufficient amounts of drugs to infer dealing –
lacking physical evidence
But during searching no fewer than 10 people called and 7 knocked on the door
asking for the d and for drugs
So, although no physical evidence, had these people
Rather than using them as witnesses, prosecution used the police officers reporting
what had happened – so looked like an issue of hearsay
, Have to q whether it should be hearsay bc people didn’t say he is a drug dealer,
rather they turned up asking for drugs – was implied not expressed statement
Was a q whether implied q of this kind should fall outside of hearsay rule
But still it was excluded in the hL
General rule on Hearsay
• Criminal Justice Act 2003, s.114
• (1) In criminal proceedings a statement not made in oral evidence in the proceedings
is admissible as evidence of any matter stated if, but only if:
– (a) any provision of this Chapter or any other statutory provision makes it
admissible;
– (b) any rule of law preserved by section 118 makes it admissible;
– (c) all parties to the proceedings agree to it being admissible; or
– (d) the court is satisfied that it is in the interests of justice for it to be
admissible.
Law Commission, Evidence in criminal proceedings: hearsay and related topics (Law Com
No. 245, 1997); Auld, Review of Criminal Courts of England and Wales (2001, Cm 5563).
Current hearsay rules now – for questions
Subsection a –d give exceptions to hearsay
Law commission interpreted report as a narrow safety net but will see interpretation of
it is more expansive
What is Hearsay?
• CJA 2003, s.114(1): In criminal proceedings a statement not made in oral evidence in
the proceedings is admissible as evidence of any matter stated if, but only if…
• CJA 2003, s.115
– (2): A statement is any representation of fact or opinion made by a person by
whatever means; and it includes a representation made in a sketch, photofit
or other pictorial form.
– (3) A matter stated is one to which this Chapter applies if (and only if) the
purpose, or one of the purposes, of the person making the statement
appears to the court to have been:
– (a) to cause another person to believe the matter; or
– (b) to cause another person to act or a machine to operate on the basis that
the matter is as stated.
Statement set out need not be oral – all the others can be excluded too
Second part – when something said out of the court will not automatically classified as
hearsay
