The following Corporate Crime practice note provides comprehensive and up to date legal information covering:. It comprises of four essential elements. Under CJA a statement is broadly defined as any representation of fact or opinion by whatever means. This means that the representation could be made orally, in writing or by a gesture. The representation must be made by a person not a machine. The definition expressly includes a representation made in a sketch, photofit or other pictorial form.
This includes artist's sketches and composite images or 'photofits' often described as E-FIT images. The statement must be made other than in court in the present proceedings, that is out of court. Such statements will include previous statements made by a person other than a witness in the proceedings, previous statements made by a person who is a witness in the proceedings, and also statements made by the witness on oath in other proceedings.
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This Practice Note explains what a third party debt order TPDO previously known as garnishee orders is as a means of enforcing a judgment debt, with reference to CPR The order directs a third party who owes money to the judgment debtor to pay that. Lexcel—assessmentLexcel is the Law Society's practice management standard. It is not compulsory although Lexcel accreditation can be helpful for firms wishing to be accredited under the Conveyancing Quality Scheme or the Legal Service Board's Specialist Quality Mark.
However, that witness is not in court…he told his friend, X, and X is called to testify as to what that witness said to prove our client went through the red light.
How can I question whether he actually saw it, where he was standing, whether he had been drinking or knew the driver and had a grudge against him? He is not there: the only person I have to cross examine him is someone he may have talked to a day later while walking his dog.
For that reason, the courts have usually barred such hearsay. However, there are many exceptions as to when hearsay can be used in most courts, and those are discussed in this article. Hearsay: Verbal and Written:. It is important to understand that written documents can also be hearsay.
Thus, one can object to a document being introduced as constituting hearsay as much as verbal testimony being introduced. One can put an out of court statement into evidence if the purpose is not to prove the truth of the out of court statement but to prove what was heard or seen directly. That is not hearsay.
An example: I need to show someone was angry to prove his intent to assault. A witness saw him swearing and claiming the victim was a thief and a liar and that he would show him what comes from that. Since the purpose of the evidence is not to prove whether or not the victim was a thief but to show the state of mind anger of the person making the statement, it would be admitted into evidence.
Of course, this exception can lead to confusion in the mind of the jury and they may take the evidence to prove he is a thief: for that reason, the judge is to balance the probative versus the prejudicial value of the evidence and may bar it for that reason. Admission and Declarations Against Interest:. Courts at times allow admissions to be entered into evidence even if hearsay since the fact that the witness would say something that is against his or her own interest gives weight to the validity of the otherwise hearsay statement.
An admission is a statement by a party to the litigation that is against his or her interest while a declaration against interest is a statement allegedly made by a nonparty witness. Some courts require the admission or declaration against interest to be of specified types, such as pecuniary interest or admission of criminal conduct. The standards for entry of evidence of an admission versus a declaration against interest are less since the declarant is a party.
Examples: A witness states that the plaintiff admitted to him while having a drink that he was not really owed the debt claimed but had forged the signature. Even though the plaintiff is not on the stand, that would be admissible evidence since it was an admission of both a criminal act and against pecuniary interest. Copies of documents admitted under Section or Section , which are exhibited, should not normally go out with the jury unless the court considers it appropriate or all parties agree: Section The witness making any statement which is admissible by reason of Sections ,, or must have the capability to make the statement, i.
Where the capability of the maker of the statement is challenged the issue must be resolved by hearing evidence in the absence of a jury if there is one and expert evidence is admissible. The burden of proof is on the party wishing to use the evidence and is on the balance of probabilities section 4 CJA. Section allows a party against whom hearsay evidence has been admitted to challenge the credibility of the person who made the hearsay statement. This can be done by adducing any of the following:.
This ability to challenge the credibility of a person who cannot be challenged by cross-examination because they do not give evidence as a witness was said by the Supreme Court in R v Horncastle [] 2 AC to be one of the battery of measures which safeguard against an unfair trial, thereby rendering any "sole and decisive" rule against hearsay unnecessary.
This provision specifically applies only to jury trials. In non-jury trials the judge or magistrates would be bound to acquit in these circumstances in any event. The court may refuse to admit hearsay evidence under section CJA if it is satisfied that the statement will result in undue waste of time which outweighs any benefit to be gained from admitting it.
This provision applies to both prosecution and defence evidence. It is in addition to and does not revoke any other statutory or common law powers to exclude evidence. Section allows an expert to rely on a statement prepared by another person and refer to it in their evidence. The exception is subject to the following requirements:.
Where an expert gives evidence using the statement of the other person in accordance with this section then the statement of that other person becomes evidence of its contents. A party may apply to the court to exclude the statement and thereby require that the maker is called if it is to be relied upon by the expert in the interests of justice. A non-exhaustive list of considerations for the court is set out at section 5.
This enables a defendant to introduce a confession made by a co-defendant subject to his proving on the balance of probabilities that the confession was not made by oppression or in circumstances likely to render it unreliable. A statement made by a machine e. There is a presumption that a mechanical device has been properly set or calibrated: section 2.
The Criminal Appeal Act is amended by Section , so that if evidence was given orally in a trial it must be given orally at any retrial, unless all parties agree, or a witness is unavailable in accordance with Section , or unavailable for other reasons and the court admits it under Section 1 d. The Criminal Justice Act moves away from the strict common law rule against the admission of hearsay evidence in criminal proceedings.
The current law is more flexible and promotes the inclusion of relevant hearsay evidence, on the basis that justice is not served if important information is excluded for no good reason. The weight to be attached to hearsay evidence is a matter for the jury or magistrates. Article 6 3 d of the European Convention on Human Rights states that a person charged with a criminal offence has a right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
However, as decided by the Supreme Court in the case of Horncastle the safeguards built into existing English law including those enacted in the CJA itself are adequate to ensure that a defendant has a fair trial. However, such cases must be subject to "the most searching scrutiny. The safeguards contained in the Criminal Justice Act , supported by those in section 78 of the Police and Criminal Evidence Act and the common law are in principle strong safeguards designed to ensure fairness.
If trial courts apply these properly and have regard to this Grand Chamber judgment and the decision of the Supreme Court in Horncastle, trials will be fair. Prosecutors should consider hearsay evidence and the potential for admitting it at every review of the evidence. The MG3 should identify hearsay evidence and any risks to admissibility, as part of the evidential stage of the Full Code Test in the Code for Crown Prosecutors. Cases involving vulnerable and intimidated witnesses may well be charged on the basis of a threshold test, but special measures and hearsay must be dealt with at the full review.
Prosecutors should still consider whether the hearsay evidence in a statement is necessary. For example the hearsay evidence in a medical statement may not need to be adduced if the injured party is going to give evidence.
The purpose of the medical report is usually to confirm the injury, not what was said to the doctor. A properly edited statement may be admitted by agreement pursuant to Section 9 Criminal Justice Act Agreement to reading a written statement under section 9 CJA does not mean that any hearsay in the statement is agreed as admissible. The effect of section 9 is to render the statement admissible only to the like extent that oral evidence would have been admissible and if the oral evidence would have been hearsay and not admissible under any of the exceptions then it is equally inadmissible in its written form.
Where a section 9 statement contains inadmissible hearsay the solution is to agree to editing of the statement. The objection to the hearsay does not warrant insisting that the witness be called because exactly the same issue will need to be determined in respect of their live evidence.
If it is not accepted that the statement contains inadmissible hearsay then consideration should be given to seeking a pre-trial binding ruling on the question. Where evidence is admitted as hearsay, the court will have to consider what weight is to be given to the evidence and any jury will be directed to take account of the fact that the witness' evidence cannot be challenged by cross examination.
Consideration of hearsay may arise at various stages of the proceedings. Witnesses may become unavailable unexpectedly or a special measures application may be refused.
Prosecutors should keep issues of hearsay under continual review and comply with the notice requirements wherever possible. See Part 20 of the Criminal Procedure Rules for the correct procedure. Forms for use can be accessed on the Criminal Procedure Rules Forms page where written notice of application to adduce hearsay evidence is required. These are:. Most of the hearsay provisions apply equally to the defence and the prosecution, with the added safeguard for the defendant that any matters requiring proof must be proved to the criminal standard by the prosecution and on a balance of probabilities by the defence.
Statements in documents can be proved by producing the original document or an authenticated copy of it: Section Police Officers may have to give evidence to show what steps have been taken to trace unavailable witnesses or what would be required to secure the attendance of a witness outside the UK. What is reasonable will depend on the importance of the evidence, the reason for non-attendance, prejudice to the defendant and the cost of bringing the witness to court: see R v Castillo [] 1 Cr.
Provision focuses not on physical act of attending court, but on fitness when there to give evidence. If clearly shown that the party wanting to adduce the evidence was responsible for putting W in fear then cannot rely on this exception. T-C was charged with murder of G.
Pros case: this was revenge attack as T-C believed G had murdered S. A letter to T-C from a third party which bemoaned the fact that nobody had yet avenged S was admitted in evidence. S was charged with possession of ammunition. He said that he had been captured by terrorists and was at all times acting under duress due to their threats.
For example, take the red car example above. So the judge might instruct the jury that it may not consider that evidence in deciding whether Jim was driving a red car. Hearsay is subject to numerous exceptions. That is, in certain situations, a statement may be admissible even if it is technically hearsay.
For example, probably the most common is the opposing party statement or party admission exception. Under this rule, one side can freely offer statements made by the opposing party, even if the opposing party made those statements out of court. Keep in mind, however, that this only applies to statements made by an opposing party.
You cannot bring in your own statements under this exception. The hearsay rule has numerous other exceptions. The hearsay rule exists because statements made under oath, in court, where the witness is subject to cross-examination by attorneys, are more reliable than those made casually on the street.
If somebody is making statements that are damaging to your case, you want to be able to cross-examine them to test the reliability of those statements and the trustworthiness of the person making them. A lie can be debunked under cross-examination, but even an egregious lie is difficult to rebut with no opportunity to confront the liar.
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