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INTERPRETING THE NEW CONCEPT OF HEARSAY

Published online by Cambridge University Press:  11 March 2010

Diane Birch  and
Michael Hirst
Diane Birch
Affiliation:
J.C. Smith Professor of Law, University of Nottingham.
Michael Hirst
Affiliation:
Professor of Criminal Justice, Leicester De Montfort Law School.
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The Cambridge Law Journal , Volume 69 , Issue 1 , March 2010 , pp. 72 - 97
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Copyright © Cambridge Law Journal and Contributors 2010

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References

1 R. v. Horncastle [2009] EWCA Crim 964 at [16]; [2009] UKSC 14 at [30]). The judgment of the Supreme Court in this case complements, and does not supplant, that of the Court of Appeal: [2009] UKSC 14, per Lord Phillips at [13].

2 [2008] EWHC 2631 (Admin).

3 [2009] EWCA Crim 1251.

4 [1992] 2 A.C. 228.

5 See J. Spencer, Hearsay Evidence in Criminal Proceedings (Oxford 2007), ch. 1.

6 Evidence (London 1958) at p. 3.

7 [1988] 1 W.L.R. 7, per Lord Havers at p. 11, citing Evidence, 6th ed. (London 1985) at p. 38. See also Kearley [1992] A.C. 228, per Lord Ackner at pp. 254–255.

8 The term “original evidence” is to be preferred, because the true converse of direct evidence is circumstantial evidence. A witness who lacks first hand knowledge of the facts in issue may have first hand knowledge of other facts from which a court may be invited to draw inferences or conclusions as to the facts in issue. This might be described as “original circumstantial” evidence.

9 See also R. v. Horncastle [2009] EWCA Crim 964, per Thomas L.J. at [7]; [2009] UKSC 14, per Lord Phillips at [20].

10 (1994) 98 Cr. App. R. 388.

11 Ibid., per Roch L.J. at p. 395.

12 It is possible to explain Rothwell in terms consistent with Cross's formulation of the rule. Groom relied on statements made by others. Those statements would have been hearsay if tendered in evidence, and since Groom's testimony was based on them it was itself hearsay. But this is neither a natural nor a straightforward way of explaining the decision. The court's own explanation was better: Groom's testimony on that issue was hearsay because it was not based on his own first-hand knowledge. See also R. v. Hussein [1998] Crim. L.R. 820.

13 Lucà v. Italy (2003) 36 E.H.R.R. 807; R. v. Arnold [2004] EWCA Crim 1293.

14 R. v. Horncastle [2009] EWCA Crim 964; [2009] UKSC 14. This rejects the approach adopted by the European Court of Human Rights in Al-Khawaja v. United Kingdom [2009] ECHR 110, in which it was held that D cannot have a fair trial under Art 6(3) if the sole or decisive evidence against him takes the form of hearsay that he cannot effectively challenge through cross-examination.

15 [1965] A.C. 1001.

16 As in R. v. Harry (1988) 86 Cr. App. R. 105; see note 19 below.

17 R. v. Cook [1987] Q.B. 417; R. v. Constantinou (1990) 91 Cr. App. R. 74.

18 [1992] A.C. 228.

19 This indeed was the Law Commission's understanding of an implied assertion: “an utterance or behaviour from which a fact (including a state of mind or an intention) may be inferred” (Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245; 1997) at para. 2.4). In case law, the classic example was Parke B.'s sea captain in Wright v. Doe d. Tatham (1837) 7 Ad. & El. 313; but a more recent example is provided by R. v. Harry (1988) 86 Cr. App. R. 105 in which H, who was charged with drug dealing, was not allowed to prove that police officers answered seven telephone calls from potential customers who had telephoned the flat H shared with his co-accused, P, all of whom had clearly been looking to buy from P, and not H. P was acquitted, but H's conviction was upheld on appeal.

20 R. v. Singh (Sukadeve) [2006] EWCA Crim 660; [2006] 1 W.L.R. 1564; R. v. Nation [2008] EWCA Crim 220.

21 Section 114(2).

22 Under the Police and Criminal Evidence Act 1984, s. 78.

23 Thus, section 133 does not apply to copies of “statements” (such as the automated confirmation of an online transaction) that are generated by computers and are not classed as hearsay.

24 As to which, see section 115(3). Section 133 is not the only provision to allow for the use of copies, but it is the most widely applicable.

25 See the Explanatory Notes to the Act, at para. 400.

26 [2006] EWCA Crim 660, [2006] 1 W.L.R. 1564.

27 [2008] EWCA Crim 220.

28 See section 115(3) (p. 82 below).

29 [2006] 1 W.L.R. 1564 at [14].

30 [1992] 2 A.C. at p. 253.

31 Ibid., at p. 243.

32 Ibid., at p. 270.

33 The “ready market” argument referred to by Rose L.J. in Singh seems to have been derived from the dissenting opinion of Lord Browne-Wilkinson in Kearley.

34 [1992] 2 A.C. at p. 243.

35 An argument that such assertions accompanied and explained the behaviour of the callers and were thus admissible as part of the res gestae, was (perhaps wrongly) rejected. See M. Hirst, “Conduct, Relevance and the Hearsay Rule” (1993) 13 L.S. 54, 66.

36 Section 115(3).

37 [1992] 2 A.C. at p. 270.

38 How, one might ask, would a person such as K be most likely to gain a reputation as a drug dealer? Cf. Davidson v. Quirke [1923] N.Z.L.R. 552.

39 This does not mean that the behaviour of an alleged drug-dealer's alleged customers must necessarily be considered irrelevant as evidence of his guilt, particularly if there is some evidence of interaction between dealer and customer: see for example M(K) [2007] EWCA Crim 3150.

40 [2003] EWCA Crim 502.

41 The same formula, linking statements and matters stated, is used elsewhere in the Act. Thus, section 120, when permitting admissible evidence of narrative to function also as admissible hearsay, declares that the statement thus used becomes “evidence of any matter stated” provided the witness could have given oral evidence of it.

42 [2009] EWCA Crim 964 at [7].

43 Criminal Evidence (Oxford 2004) at p. 585.

44 Contrast the Civil Evidence Act 1995, s. 1(2), where it is stated that a hearsay statement is one that is “tendered as evidence of the matters stated”.

45 There is also a rider aimed at the less common case where the stated purpose is absent, but there is an equivalent intention to cause an action. See p. 86, below.

46 [1956] 1 W.L.R. 965.

47 [2009] EWCA Crim 1251.

48 The texters could not be identified, so the only viable exception was the “interests of justice” exception (section 114(1)(d)), which the court felt could not be satisfied.

49 The conviction was nevertheless considered to be safe.

50 It is also asserted (at [34]) that thanking the person to whom the text was sent was a statement of fact or opinion, but this again seems incorrect.

51 LC 245, paras. 4.19 et seq. and 7.5 et seq.

52 Ibid., at para. 7.30.

53 Uniform Evidence Acts, s. 59(1).

54 LC 245, at para. 7.26.

55 “It is the purpose for which an out of court statement is tendered as evidence that determines whether or not it is hearsay”: Phipson on Evidence 16th ed. (2008) at 28–13, citing Roberts and Zuckerman at 587: “there is no such thing as hearsay evidence, only hearsay uses”. Note however that a jury that has heard evidence adduced for [non-hearsay] purpose x may need to be directed in the summing up that they must not also treat it as [hearsay] evidence of y.

56 [2008] EWHC 2631 (Admin).

57 LC 245 at paras. 7.33 et seq.

58 See Spencer, Hearsay Evidence in Criminal Proceedings, at para. 3.21.

59 In the latter event, notice under Crim. P.R. pt. 34 would not in fact have been required, even if the facts stated in the licence were indeed hearsay. See rule 34.1.

60 In this case a photocopy was adduced in place of the original licence, but no issue seems to have arisen over that.

61 [1942] 1 All E.R. 187.

62 See also Cross and Tapper on Evidence 11th ed. (Oxford 2007) at pp. 321–322.

63 White v. The Queen [1999] A.C. 210.

64 E.g., the res gestae doctrine.

65 In R. v. Wallwork (1958) 42 Cr. App. R. 153, W was charged with sexual offences against his 5 year old daughter, who had triggered the charges by complaining to her grandmother. The little girl proved incompetent when thrust into the witness box (without the benefit of any of the special measures directions that would have been available now). In the words of Lord Goddard C.J., she “said nothing and could remember nothing”. This proved fatal to the admissibility of evidence from her grandmother concerning the original complaint.

66 [2002] UKPC 52 at [21].

67 [2008] EWCA Crim 484, at [18].

68 [2009] EWCA Crim 789, at [61].

69 [2005] EWCA Crim 1785.

70 [2007] EWCA Crim 3027.

71 This would in fact be circumstantial evidence, rather than direct evidence: see note 8 above.

72 [2006] EWCA Crim 3309.

73 Section 115(2).

74 “The Hear-Say Rule as a See-Do Rule: Evidence of Conduct” (1961) 33 Rocky Mountain L. Rev. 133.

75 R. v. B [1997] Crim. L.R. 220 and commentary, where the analogy is drawn with a mother reading her daughter's diary.

76 R. v. B [2003] EWCA Crim 1204. Counsel in that case conceded that the only possible basis of admissibility was to rebut suggestions of recent fabrication.

77 The main effects of which are to extend the time-frame for complaining, and the range of matters about which complaints may be received (complaints need no longer relate to sexual offences).

78 At common law, a statement admissible to prove the facts was also admissible as evidence of credibility, on the basis that the greater includes the lesser: R. v. Shickle, unreported, 30 July 1997.

79 Mawaz Khan v. The Queen [1967] 1 A.C. 454.

80 This appears to have been overlooked in R. v. DT [2009] EWCA Crim 1213, but in this case the provisions of section 116 were not satisfied, so section 121 was not critical to the outcome.

81 See Hasan [2005] UKHL 22, [2005] 2 A.C. 467.

82 Confessions (Oxford 1985) at p. 90. There is also the practical point that the confession rule appears to pre-date the rules on hearsay.

83 Unreported, 13 March 2008.

84 The same could be said of an inculpatory statement intended only for the ears of one who already knows that D is guilty (e.g., an eavesdropped conversation with an associate in which D is heard to say, “At least they don't know where I hid the gun.”).

85 [2005] UKHL 22, [2005] 2 A.C. 467 at [53].

86 Nor can section 126 be used to exclude it, because that provision operates only in respect of “statements” tendered as “evidence of a matter stated”.