Hearsay in Myers v. DPP [1965]

Hearsay

In Myers v. DPP [1965] the accused faced several charges of receiving stolen cars. The prosecution case was that wrecked cars and their log books had been bought at a very low price and then cars of the same type had been stolen, passed off and sold as the legitimately bought cars.

The prosecution were allowed to establish that the cars were stolen by calling employees of the car manufacturers, and these witnesses produced microfilm records (photographs of the written record compiled by anonymous workmen on the production line) purporting to show, the cylinder block numbers which had been indelibly stamped on the engine and contemporaneously recorded during the manufacturing process.

The majority of the House of Lords held that the evidence had been wrongly admitted on the ground that the hearsay rule was absolute unless an exception applied. The list of common-law exceptions was closed, and the mere fact hearsay evidence was highly reliable was not of itself any reason to admit it in the absence of an established exception. No matter how cogent particular evidence may seem to be, unless it comes within a class, which is admissible, it is excluded.

The technical nature of the hearsay rule has created difficulties for the courts.

If highly reliable and probative evidence falls within the scope of the exclusionary rule it is inadmissible unless a common-law or statutory exception can be found to justify its admission. In the absence of any such inclusionary exception the courts must either exclude the evidence or find a way of side-stepping the hearsay rule.

This side-stepping has been effected in two ways. First, the courts have been willing to redefine evidence so that it is not caught by the exclusionary rule at all, and this has led to anomalous cases where what appears to be hearsay has been classified as something else. Secondly, where it has been thought inappropriate to redefine an item of obvious hearsay evidence as non-hearsay the courts have ignored the hearsay problem altogether or broadened an existing exception so that the evidence can be brought within its scope.

A written entry in a record which a party relies on for the purpose of proving the truth of the matter recorded obviously falls within the scope of the hearsay rule, and logically the same should be true for the absence of an entry if it too amounts to an assertion of fact.

If a teacher places a tick next to the name of any students who are present and makes no mark next to the names of absent students, the absence of a tick amounts to an assertion of fact ('this student was absent on this date') just as much as the tick ('this student was present on this date') and as such both should be covered by the hearsay rule.

However the Court of Appeal has decided differently. In R v. Patel (1981) the accused faced a charge of assisting the illegal entry into the UK of a third party, a Mr Ashraf, and the prosecution called an immigration officer to prove that Ashraf was an illegal entrant.

The immigration officer was allowed to rely on Home Office records he had previously examined and gave evidence that Ashraf´s name was not recorded as a person entitled to a certificate of registration in the UK.
Although Patel's conviction was quashed on appeal, on account of the immigration officer's reliance on hearsay evidence, the Court of Appeal went on to intimate that it would have been permissible for the officer responsible for the compilation and custody of the records to give evidence that the method of compilation and custody was such that if Ashraf's name was not there he must be an illegal entrant.

The Court of Appeal did not explain why the evidence would not be hearsay merely because it was given by one type of officer rather than another, but the dictum was considered with approval in R v. Shone (1982). In this case the accused was charged with handling stolen vehicle springs which had been identified as coming from a particular wholesaler.

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The wholesaler's stock clerk and parts sales manager were called and they gave evidence that, while the receipt and the sale or use of all spare parts were recorded on cards, there was no record of the sale or use of the material springs, even though those springs had been received and found to be missing from their stock.

The Court of Appeal held that the absence of any mark indicating the sale or use of the springs, as related to the court by the witnesses, was not hearsay but direct evidence from which the jury had been entitled to draw the inference that the springs were stolen. It would seem to be permissible, therefore, to relate hearsay evidence in court, thereby converting it into admissible direct testimony, so long as the hearsay relied on is the absence of a record rather than a positive entry.

Although it is a sensible result it is also a new common-law exception to the hearsay rule, contravening Myers v. DPP.

The hearsay rule was simply ignored in R v. Muir (1983). In this case the accused was charged with stealing a video recorder he had hired from Granada Television Rentals, his defence being that two men had called round to collect the video and his wife, presuming they were employees of Granada, had allowed them to take the video away. The prosecution was allowed to call Granada's district manager to give evidence that he had been told by his head office that no repossession order had been made in respect of the accused's video.

The Court of Appeal held that, as this was not a case where a document was relied on, and there was no document in existence, the question for the jury was simply whether or not the video had been repossessed by Granada as the accused had claimed.

The district manager as 'the best person to give the relevant evidence' had therefore been entitled to say that his head office had informed him that the video had not been repossessed.

A number of decisions concerning identification evidence exemplify the pragmatic approach adopted by the Court of Appeal to the admissibility hearsay evidence. The hearsay rule was ignored in R v. Osbourne [1973], a common-law exception was widened in R v. McCay [1990], and in R v. Cook [1987] hearsay evidence was held to be admissible on the ground that the evidence in question (photofits and sketches) was sui generis and not hearsay after all.

Hearsay evidence may now be relied on by expert witnesses (R v. Abadom [1983]), and the House of Lords in R v. Sharp [1988] created a new common-law exception by recognising that the exculpatory parts of a 'mixed' statement were admissible as evidence of the truth of the matters stated.
It should also be noted that the common law allows hearsay evidence to be admitted 'through the back door' in two other ways: a witness who relies on his earlier statement to refresh his memory in respect of an event which he has entirely forgotten is in effect relating hearsay to the court; hearsay may also become admissible if a document containing it is given to a witness to read during cross-examination and he accepts the truth of the matters stated therein.

A case which has given rise to much academic discussion is R v. Rice [1963]. Rice and his several co-accused, including Moore and Hoather, were charged with two counts of conspiracy.

The prosecution were allowed to adduce a used airline ticket for two seats with the names 'Rice' and 'Moore' as evidence from which it could be inferred that Rice had travelled from London to Manchester with Hoather (who had admitted using Moore's booking and travelling with Rice).

The ticket was produced by a representative of the airline who had custody of tickets returned after use. The court of Criminal Appeal held that the ticket had been properly admitted as real evidence, although its evidential value was said to be limited to allowing the jury to draw an inference that 'probably two people had flown on the particular flight and that it might or might not seem to them by applying their common knowledge of such matters that the passengers bore the surnames which were written on the ticket' (although it was accepted that the latter inference was not one to be readily drawn given that it was suggested Moore had not taken the flight).

The Court drew an analogy with passports: just as a passport is more likely to be in the possession of the person to whom it has been issued, so an airline ticket which has been used on a particular flight and which has a name on it is likely to have been used by a person of that name (or by one of two men whose names are on it).

However the ticket was inadmissible for the purpose of 'speaking its contents' as this would be hearsay. A passport could not be adduced to say 'my bearer is X' and equally an airline ticket could not be adduced to say 'I was issued to Y'. According to this reasoning the document was not admissible as an assertion ('this ticket was issued to Rice') but it was nonetheless admissible for the purpose of linking Rice to it on that flight.

This decision has been criticised as an example of hearsay being improperly admitted. It has also been suggested that the decision can no longer be considered good law in the light of Myers v. DPP (which was decided a year later).

According to this view, the probative value of the ticket depended on an implied assertion of possession ('this ticket was used by Rice the accused') which, like the expressly assertive labels in Patel v. Comptroller of Customs [1966] and R v. Brown [1991] was inadmissible hearsay.

The decision in R v. Rice can be justified, however, if it is seen as an example of evidence having 'double relevance'. If the word 'Rice' on the ticket is regarded as an identifying mark, rather like a fingerprint, it has additional probative value based on the unlikelihood of a coincidence. Identifying marks are not intended to be assertive and do not therefore fall directly within the scope of the hearsay.

It is true that such a mark can give rise to an implied assertion of possession (or presence at the place where the object was found), but the evidence is not relied on for that purpose. Its evidential value depends not on an acceptance of the truth of any implied assertion but on the unlikelihood that a person other than the accused was also in possession of something with such a distinctive mark upon it.

If a rare, intricately embroidered handkerchief is found at the scene of a crime, the fact the accused was in possession of a similar handkerchief, now lost, would be probative of his presence there. The same would be true if the handkerchief was uncommon for a more prosaic reason, for example because it bore the accused's initials upon it. The initials would give rise to an implied assertion, but the evidence would not be adduced for the purpose of proving the truth of that assertion.

The evidential value relied on would be the fact that the accused belongs to the class of persons who have such a mark on their handkerchiefs. Taking this one step further, the same must be true if the handkerchief was marked with a surname. If a handkerchief bearing the name 'Rice' is found at the scene of a crime this is admissible circumstantial evidence that a person who is likely to have handkerchiefs decorated with that name, that is, a person called Rice, was there.

In R v. Rice the ticket had been returned to the airline by the passenger at the end of the flight so it amounted to an item of circumstantial evidence directly connecting a person called Rice to that particular flight to Manchester. Just as a handkerchief marked 'Rice' is likely to have been used by a person called Rice, an airline ticket marked 'Rice' and handed in immediately after a flight is likely to have been used on that flight by a person called Rice.

The probative value depends on this degree of likelihood and not on the truth of an implied assertion such as 'this ticket was issued to Rice' or 'Rice travelled on this flight'. Of course if the ticket had been found in any other place it would not have had probative value as circumstantial, real evidence; its only relevance would have lain in the implied assertion that the ticket had been issued to and used by a person called Rice, which would have been inadmissible hearsay.

Strictly speaking it is true to say that the evidence was tainted by hearsay to the extent that usually a name is printed on a ticket, or a monogram is printed on a handkerchief, because the person requesting the item has expressly or impliedly represented that a person with those initials or that name will be using it. However, when it is understood that much evidence is dependent upon hearsay to some extent (after all, how does anyone know his name or age or where he lives?), this can be disregarded as a de minimis taint, and R v. Rice would seem to have been correctly decided after all.

Another case of 'double relevance' which is in some respects similar to R v. Rice is that of R v. Lydon (1986). The accused, Sean Lydon, was charged with robbery and the prosecution sought to identify him as one of the offenders by adducing, inter alia, a gun, which had been found along the route used by the getaway car, and pieces of paper bearing the legend 'Sean rules' and 'Sean rules 85' which had been found near the gun.

Scientific analysis showed that smears of ink on the gun matched the ink on the pieces of paper. Lydon appealed on the ground that the evidence linking him to the gun, that is, the references to Sean, was hearsay and ought not to have been admitted. The Court of Appeal held that the evidence referring to Sean had been properly admitted because it was 'no more than a statement of fact involving no assertion as to the truth of the contents of the document'. The notes had not been relied on by the prosecution for the purpose of proving the truth of any express or implied assertion.

The relevance of the note, as in R v. Rice, lay simply in the likelihood that the person who would write such notes would be called Sean. As such, the evidence was not hearsay at all but circumstantial evidence from which the jury had been entitled to draw an inference that Lydon had disposed of the gun and therefore been involved in the robbery. Although the Court of Appeal did not approve R v. Rice, the reasoning applied suggests that that case was correctly decided.

In R v. McIntosh [1992] the accused was charged with being concerned in the importation of cocaine and the prosecution were permitted to adduce a piece of paper of unknown authorship bearing calculations of the price and weight of a quantity of drugs. The piece of paper had been found concealed in the chimney of the house where the accused had been living prior to his arrest, and was held to be admissible real evidence which did not infringe the hearsay rule.

The document was not adduced for the purpose of proving the truth of the matters stated but simply to show the accused had an interest in the information it contained.

The same reasoning applies to items such as a book which reveals the accused's interest in a particular branch of knowledge. If the accused is charged with being involved in a joint enterprise to import cocaine, the mere fact he has a book entitled 'The Cocaine Consumer's Handbook' would be relevant circumstantial evidence of his involvement (R v. Thrussell (1981) [1997]). The book would not be relied on as evidence of the truth of the matters stated therein so the hearsay rule would not apply. However, because a book on cocaine consumption would suggest a criminal disposition, the evidence would have to satisfy the similar facts test before it could be admitted as real evidence.