The intention of the enactment of CJA was to nail down the common law rules. The Act formulated four accepted categories under which statements forming part of the res gestae are admitted: spontaneous exclamations, contemporaneous statements of physical sensation, statements accompanying and explaining an act, and statements as to the declarant's state of mind or emotion.[21] These specific statutory exceptions comprise most of the instances under which evidence may be adduced as res gestae[22] and therefore, making it easier to admit such evidence. In addition, the statutory code represents a more comprehensible regime particularly to the lay trier of fact.[23]
It saves the courts time and efforts as there will be no need to inquire into the degree of contemporaneity of the statement as at common law and issues which do not serve to promote reliability.[24] It is also less likely to make mistake when applying the statute than there would be in applying the common law.[25] In addition, with the new series of exceptions, legislature would no longer need to worry that the courts would continue to mess around with the rule and expand their “common law” exception of res gestae in an unsatisfactory manner. The significant advantage of CJA is that common law method would no longer be able to shape the future law once the common law exceptions are codified into the statute.[26]
Furthermore, CJA has further mitigated the uncertainty under common law when the preserved common law exception under res gestae provided that “if the statement relates to … a mental state (such as intention …)”.[27] This seems to have incorporated declarations of intention as an exception, and thus clarifying the previous vague position under the common law.
(b) Problems arises under the statutory scheme
Notwithstanding the comprehensive categories of res gestae exceptions formulated under CJA, it is arguable that hearsay evidence has been admitted despite its inherent dangers. In certain cases, the res gestae exception is allowed with only one circumstantial guarantee of reliability. In others, admission of evidence on grounds of necessity has led to dangers of insincerity, especially statements of emotion or intent since no one other than the declarant can know what he was feeling. This shows that evidence is again admitted on a poorly constructed basis. The imperfection of the test put forward by the relevant res gestae exception is that the court will look no further than that in deciding on the admissibility of evidence. This prevented the court from exploring deeper into the strength or reliability of the particular evidence.[28]
(ii) Public Information
Under common law, Sturla v Freccia[29] provided that one of the conditions for the admissibility of public documents as hearsay evidence is that it must have been made by a public officer acting under a duty to inquire into and satisfy himself of the truth of the facts recorded. It is argued that this condition is no longer necessary in modern times as the highly complicated, more diverse and much larger community, means that official are now charge with making many records for public use, and is unlikely to have personal knowledge of their truth. This exposed a serious deficiency in the common law rule.[30]
In R v Halpin,[31] the Court of Appeal decided that for the document to be admissible under the public records exception to the hearsay rule, it was no longer necessary for a public document to be prepared by a public official with personal knowledge or in pursuance of a public duty to ascertain the accuracy of the facts. In the court's opinion “the common law should move with the times” and allow for the fact that under modern conditions the public official's function may be performed by two or more persons. The terms of the judgment in Halpin auspicated later statutory provisions leading up to s. 117 by alluding to the two separate requirements of compilation under a duty, and the supply of information by a person having, or who might reasonably be supposed to have knowledge of the facts. [32]
(iii) Expert Evidence
Expert evidence as an exception to the hearsay rule under res gestae is also preserved under CJA. The generally acknowledged problems with expert evidence under the common law are that the testing of expert opinion by cross-examination can be tediously long and will thus contribute not only to disproportionate expense, but also to considerable delays.[33] CJA mitigated the hearsay problems surrounding expert evidence by allowing an expert to rely on information provided by someone who cannot be expected to have any recollection of the matters stated. [34] This would help to reduce the amount of wasteful and unnecessary cross-examination which would have to be carried out under the common law and would avoid the waste of court time and expense to cross-examine that person in the court proceedings.
(iv) Confessions
Under common law, it is recognised that a pre-trial admission can only be invoked against the person who made it. R v Beckfold[35] criticised this as leading to the suppression of the truth and to miscarriages of justice as “full, open and unqualified admission of guilt, made by a third party, remains prima facie inadmissible”.[36]
CJA provided that a defendant may now adduce a co-defendant's confession in a joint trial. However, the deficiency is that in a joint trial, the court has no discretion to reject evidence which its prejudicial effect to one accused is stronger than its probative value to the other. Co-defendant who seeks to oppose the admission of the confession on the basis that it is prejudicial is therefore not sufficiently protected.[37]
The “Safety Valve”
One of the most interesting feature of the Act is the “safety valve”, which by virtue of s.114 (1)(d), the court may admit evidence if it is satisfied that it is not contrary to the interests of justice to do so. Worthern argues that this provision “acts to urge the courts to undertake a very broad investigation when making a decision”.[38] Where the admission of the evidence would ensure the commission of a fair trial the courts would thus permit it to be adduced.[39]
The highly flexible inclusionary discretion under s.114 (1)(d) is capable of including other specific exceptions contained throughout CJA. This could be taken to mean that even if an evidence is rejected under the preserved common law exception, it might still be possible for the court to admit it under the inclusionary discretion provided for in s.114(1)(d). However, it has been argued that this could caused problem as statement could have been admitted under s.114(1)(d) without needing to consider first the more strict conditions and requirements set out under those exceptions.[40] Lord Cooke thus commented with sarcasm that the safety valve was basically the only provision required.
S.114 (2) of CJA has listed out various factors to be considered in relation to the exercising of the inclusionary discretion. Nonetheless, in cases such as R v Kavallieratos,[41] hearsay evidence has been admitted despite no reference having been made to those factors at all.[42] It is thus contended that the safety valve should be withdrawn for reasons of uncertainty and the over-dependant on judicial discretion.[43]
Implied Assertions
The way in which the concept of hearsay has been interpreted by the courts under common law has similarly caused problem and this is especially in relation to the term “implied assertions” used. Unfortunately, this is a problem that CJA has not entirely resolved. Under common law, statements where the maker unintentionally asserted some relevant fact were treated as hearsay and excluded.[44] In R v Kearley,[45] the police officers heard over the phone that the appellant was being asked for their “usual” supply of drugs. Such requests were inadmissible hearsay evidence as they are to be regarded as an unintentional implied assertion that they had been supplied by him before.
S.115(3) intended to set aside the view of the majority in Kearley by limiting implied assertions within statements made with a purpose to “cause another to believe the matter” and specifically to treat such evidence as non-hearsay. Although the principal aim of CJA was to solve the problem on Kearley, it however ignores the fact that Kearley was a case about relevance. Birch was therefore of the opinion that non-hearsay evidence is not necessarily admissible as it may be irrelevant or even lack of probative value.[46]
One question poses in relation to implied assertion is that whether the decision in Kearley has in fact been reversed by CJA. By looking at the wording of s.115(3), CJA’s objective is to separate intentional implied assertion from unintentional implied assertion, so this could be taken to mean that only intentional implied assertions will be admissible as they come within the ambit of the provisions. As nothing about unintended assertion has been mentioned, it is therefore still possible for out-of-court statements where the purpose of the person making the statement was not to cause their hearer to believe the matter stated to be hearsay evidence. The unintentional implied assertion, as that under Kearley will still remain as hearsay.[47]
Automatic admissibility- The ‘fear’ condition
Under CJA, s.116 provided that statements are automatically admissible where it satisfies the conditions set out herein in s.116 (2). S.116(2)(e) stated that statements not made in oral evidence as a result of the fear of the witness may be admitted with the leave of the court so that the court is satisfied that it is in the interests of justice to admit the statement.[48] As there is nothing in the provision indicating that the admissibility of the fear must be a reasonable one, the genuineness of the fear might thus be questioned.[49]
In Belmarsh Magistrates’ Court, ex parte Gilligan,[50] it is shown that there is no manner on how fear is to be proved and Acton Justices, ex parte McMullen[51] signified that fear need not be attributable to the offence itself, or something said or done which could be related directly to the offence. Thus, the difficulty in proving fear is that reluctant witness might be hiding behind an automatic exception for reason of avoiding being drawn into proceedings. [52] CJA should therefore have devised a manner in which fear is to be proved.
Statements as Narrative and as Hearsay
At common law, the rule against previous consistent statements (also known as the rule against narrative) is that the statement cannot be used to enhance the credibility of the witness’s oral evidence. However, this is subject to several exceptions and the fact is that even if the previous consistent statements are admitted, it will not be accepted as statements for the truth of the contents and will only be used to demonstrate the consistency of the witness.[53] The exceptions to the rule are:
(a) Rebuttal of Late Invention
One of the criticisms in relation to this exception is the requirement that distinction must be made between treating the statement as evidence of its facts and as evidence going to the credibility of the witness. This distinction is criticised as it is seemed to be almost without a difference.[54]
By s.120(2), it is provided that if a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.[55] In R v Athwal,[56] it is stated that CJA has loosened the harshness of the old law as it has allowed hearsay evidence that is previously inadmissible as hearsay but admissible only as narrative to be admissible.
(b) Recent Complaint
This exception was being criticised as despite being recognised as a common law exception to the narrative rule, it is only being applied to sexual offences. In addition, the complaints made must be spontaneous, “at the first opportunity after the offence which reasonably offers itself”.[57] This is disputable as research shows that it is unlikely for most victims to tell someone of their misfortune as soon as the event happens.[58] In R v Birks,[59] the court looked into the common law rule which allows only prompt complaints of sexual offence to be admitted. Their view is that it seems to be more reasonable if the evidence of a first complaint is always admissible.
Under CJA, the exception was reformulated and evidence of recent complaint is not longer confined to sexual offences. Unfortunately, CJA does no more than substitute a slightly more open-ended form of words “as soon as can reasonably be expected” for the promptness requirement.[60]
(c) Previous Identification
The rule against narrative similarly regarded the truth of the earlier identification as impertinent and that it is only allowed to substantiate the evidence given in court. In Sealey v Trinidad and Tobago,[61] Lord Hutton:
[witness] testimony cannot go to the issue of the accused's guilt, because he has no first-hand knowledge of it….”
In this instance, Law Commission view was that it is is untrue that the out-of-court identification plays only a secondary role as it is the witness that comes to the conclusion that the man selected out is the offender at the earlier identification. [62] It is this out-of-court identification that is important and surely, there is no sound reason for excluding available evidence of the earlier identification. As a result, under CJA, the parliament rectified this position by allowing out-of-court evidence to be admitted as evidence of its truth rather than going simply to credibility.[63]
Infringement of Human Rights
It has been criticised that our 2003 reform of the hearsay rule conflicts with the rights guaranteed to defendants under Article 6 of the European Convention on Human Rights. Article 6(3)(d) of the ECHR guarantees to all defendants the right “to examine or have examined the witnesses against him” but however, this requirement is not reflected in the “hearsay reform” provisions under CJA. It is provided that under CJA, where a piece of hearsay evidence is admissible, it would be treated as if it has the same potential weight as a piece of oral evidence.[64]
In Al-Khawaja and Tahery v UK[65], CJA was criticised in Strasbourg for its failure to respect the rights of the defendants under Article 6(3) (d) because the defendants had been convicted on the basis of “sole or decisive evidence” put against them from witnesses whom they had not been able to cross-examine.
Nevertheless, under s.126, the court is granted the power to exclude such evidence which it felt that the right of the defendant to a fair trial would be violatd by admitting the evidence.
Conclusion
With the essay discussed above, it has been shown that the enactment of CJA do in fact rectified most of the flawed area of the common law rules of hearsay. However, it is unfortunate that some problems have on the other hand emerged from the CJA itself. The res gestae exceptions formulated under the new law seemed to have prevented the court from exercising their power in examining the reliability of evidence and the function of inclusionary discretion makes other provisions appear to be unnecessary.
Bibliography
Books
Cross, R. Evidence, 5th edn, Butterworths, London, 1979.
Elliot, DW, Phipson and Elliot Manual of the Law of Evidence, 11th edn, 1980.
Gibson, B, Criminal Justice Act 2003: A Guide to the New Procedures and Sentencing, Waterside Press, Winchester, 2004.
Keane, A, The Modern Law of Evidence, 7th edn, Oxford University Press, New York, 2008.
Murphy, P, Murphy on Evidence, 11th edn, Oxford University Press, New York, 2009.
Roberts, P, and A Zuckerman, Criminal Evidence, 2nd edn, Oxford University Press, USA, 2010.
Journal Articles
Birch, D, ‘Criminal Justice Act 2003: Hearsay- Same old story, same old song?’, Criminal Law Review, 2004, pp.556- 573.
Birch, D, ‘The New Law of Hearsay: Criminal Justice Act 2003’, Archbold News, vol.3, 2005, pp.6-7.
Birch, D, and M Hirst, ‘Interpreting the New Concept of Hearsay’, Cambridge Law Journal, vol. 69, no.1, 2010, pp. 72-97.
Hartshorne, J, ‘Defensive use of co-defendant’s confession and the Criminal Justice Act 2003’, International Journal of Evidence and Proof, vol.8, no.3, 2004, pp.165-178.
Hirst, M, ‘Confessions as proof of innocence’, Cambridge Law Journal, vol.57, no.1, 1998, pp.146-164.
Munday, R, ‘Legislation that would preserve the common law: The case of the declaration of intention’, Law Quarterly Review, vol. 124, 2008, pp. 46-71.
Ormerod, DC, ‘Law Commission Consultation Paper No. 138 on hearsay: Part 2 – The hearsay exceptions’, Criminal Law Review, 1996.
Pattenden, R, and A Ashworth, ‘Reliability, hearsay evidence and the English criminal trial’, Law Quarterly Review, vol. 102, 1986, pp.292-331.
Sackville, R, ‘Expert Evidence in the Managerial Age’, The Journal of Bar Association of Queensland, issue 34, April 2009.
Samuels, A, ‘Hearsay Evidence: The Principles (Such as they are)’, Criminal Lawyer, 2008, p.5.
Spencer, JR, ‘Hearsay Reform: The train hits the buffer at Strasbourg’, Cambridge Law Journal, vol. 68, no.2, 2009, pp.258-261.
Tapper, C, ‘The Law of Evidence and The Rule of Law’, Cambridge Law Journal, vol. 68, no.1, 2009, pp. 67-89.
Uglow, S, ‘Section 115(3) of the Criminal Justice Act 2003’: how not to overturn Kearley’, Archbold News, vol.5, 2005, pp.6-7.
Wallace, S, ‘The Empire strikes back: Hearsay rules in common law legal system and the jurisprudence of the European Court of Human Rights’, European Human Rights Law Review, vol. 4, 2010, pp.408-418.
Worthern, T, ‘The Hearsay Provisions of the Criminal Justice Act 2003: so far, not so good?, Criminal Law Review, vol.6, 2008, p.439.
Law Commission Report
Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997.
Criminal Law Revision Committee Report
Criminal Law Revision Committee 11th report, Cmnd. 4991, para. 239.
[1] Lord Ackner in R v Kearley [1992] 2 AC 228 at 254- 255
[2] Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, pp.36 – 43.
[3] A Samuels, ‘Hearsay Evidence: The Principles (Such as they are)’, Criminal Lawyer, 2008, p.5.
[4] R Cross, Evidence, 5th edn, Butterworths, London, 1979, p.479.
[5] Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, para. 6.7.
[6] B Gibson, Criminal Justice Act 2003: A Guide to the New Procedures and Sentencing, Waterside Press, Winchester, 2004, p.66.
[7] s. 144 CJA 2003; Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, pp.79-80.
[8] s. 114 (1)(a) CJA 2003
[9] s. 114 (1)(b) CJA 2003
[10] s. 114 (1)(c) CJA 2003
[11] s. 114 (1)(d) CJA 2003
[12] P Murphy, Murphy on Evidence, 11th edn, Oxford University Press, New York, 2009, p.270.
[13] ibid.
[14] R Pattenden and A Ashworth, ‘Reliability, hearsay evidence and the English criminal trial’, Law Quarterly Review, vol. 102, 1986, pp.292-331.
[15] [1972] AC 378
[16] DW Elliot, Phipson and Elliot Manual of the Law of Evidence, 11th edn, 1980, p.282.
[17] Criminal Law Revision Committee 11th report, Cmnd. 4991, para. 239.
[18] P Roberts and A Zuckerman, Criminal Evidence, 2nd edn, Oxford University Press, USA, 2010, p.651.
[19] (1977) 65 Cr. App. R 56
[20] R Munday, ‘Legislation that would preserve the common law: The case of the declaration of intention’, Law Quarterly Review, vol. 124, 2008, pp. 46-71.
[21] Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, paras. 3.38-3.49.
[22] Pattenden and Ashworth, loc. cit.
[23] Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, paras. 1.7 & 4.68.
[24] Munday, loc. cit.
[25] Pattenden and Ashworth, loc. cit.
[26] Munday, loc. cit.
[27] s.118(1) : 4(c) CJA 2003
[28] Pattenden and Ashworth, loc. cit.
[29] (1880) 5 App Cas 623
[30] A Keane, The Modern Law of Evidence, 7th edn, Oxford University Press, New York, p. 346.
[31] [1975] 1 QB 907
[32] Murphy, op. cit., p. 277.
[33] R Sackville, ‘Expert Evidence in the Managerial Age’, The Journal of Bar Association of Queensland, issue 34, April 2009.
[34] DC Ormerod, ‘Law Commission Consultation Paper No. 138 on hearsay: Part 2 – The hearsay exceptions’, Criminal Law Review, 1996.
[35] [1991] Crim.L.R. 833
[36] M Hirst, ‘Confessions as proof of innocence’, Cambridge Law Journal, vol.57, no.1, 1998, pp.146-164.
[37] J Hartshorne, ‘Defensive use of co-defendant’s confession and the Criminal Justice Act 2003’, International Journal of Evidence and Proof, vol.8, no.3, 2004, pp.165-178.
[38] T Worthern, ‘The Hearsay Provisions of the Criminal Justice Act 2003: so far, not so good?, Criminal Law Review, vol.6, 2008, p.439.
[39] S Wallace, ‘The Empire strikes back: Hearsay rules in common law legal system and the jurisprudence of the European Court of Human Rights’, European Human Rights Law Review, vol. 4, 2010, pp.408-418.
[40] C Tapper, ‘The Law of Evidence and The Rule of Law’, Cambridge Law Journal, vol. 68, no.1, 2009, pp. 67-89.
[41] [2006] EWCA Crim 2819
[42] Tapper, loc. cit.
[43] D Birch, ‘Criminal Justice Act 2003: Hearsay- Same old story, same old song?’, Criminal Law Review, 2004, pp.556- 573.
[44] S Uglow, ‘Section 115(3) of the Criminal Justice Act 2003’: how not to overturn Kearley’, Archbold News, vol.5, 2005, pp.6-7.
[45] (1992) 2 AC 228
[46] D Birch, ‘The New Law of Hearsay: Criminal Justice Act 2003’, Archbold News, vol.3, 2005, pp.6-7.
[47] Uglow, loc. cit.
[48] s. 116 (2)(e) CJA 2003
[49] Murphy, op. cit., p. 289.
[50] [1998] 1 Cr. App.R.14, DC
[51] (1990) 92 Cr.App.R. 98
[52] Birch, loc. cit.
[53] D Birch and M Hirst, ‘Interpreting the New Concept of Hearsay’, Cambridge Law Journal, vol. 69, no.1, 2010, pp. 72-97.
[54] Birch and Hirst, loc. cit.
[55] s.120(2) CJA 2003
[56] [2009] EWCA Crim 789
[57] R v Osborne [1905] 1 KB 551, 561, per Ridley J
[58] Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, p.149, J Temkin, Rape and the Legal Process (1987) pp 145–146.
[59] [2003] EWCA Crim 3091, [2003] Crim LR 401
[60] s. 120(7) and (8) CJA 2003
[61] [2002] UKPC 52
[62] Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245), 1997, para. 10.46 and 10.47, p. 155.
[63] s.120 (5) CJA 2003
[64] JR Spencer, ‘Hearsay Reform: The train hits the buffer at Strasbourg’, Cambridge Law Journal, vol. 68, no.2, 2009, pp.258-261.
[65] [2009] ECHR 110