The hearsay evidence is a problematic issue in criminal law. Article 6(3) (d) of European Convention on Human Rights guarantees to a defendant the minimum right “to examine or have examined witnesses against him. The right of a fair trial under article 6 requires that an accused/defendant should be given an adequate and proper opportunity to challenge and questions witnesses against him either at the time when the statement is made by the witness or at some later stages. In this article, we will explore why evidence which is hearsay is generally not accepted by the Courts and how the courts have allowed and accepted the statements of frightened witnesses.
Reading Time: 5 Minutes
What is on this page?
- Hearsay Statement
- The Distinction
- Exception of Fear
- What is Fear?
- Balancing Act
- What Would You Do Next?
A hearsay statement is a statement which is made out of court in order to prove the truth of the matter. As a general rule hearsay evidence is inadmissible. The common law and statutory defects in the rule against hearsay such as the indiscriminate application of the rule to both prosecution and defence evidence, non- reliability of the evidence, non-consistent application of hearsay rule resulted in the enactment of Criminal Justice Act 2003(CJA). Sections 114 and 115 of CJA
The distinction between hearsay and original evidence rests upon the purpose for which the statement is made and hence for which the evidence is being introduced. If the purpose is to cause somebody to believe the matter, that prima facie will be inadmissible hearsay, unless it falls under the exceptions such as unavailable witnesses in criminal proceedings or fear
Exception of Fear
Hearsay evidence although generally not admitted as an evidence during a trail however,where a relevant person who had made such statement and now due to fear of death violence and injury is reluctant to be crossed examined or repeat the statement in the court, under the exception of fear his out of court statement will be allowed and admitted as an evidence.
What is Fear
Criminal Justice Act (2003), has construed fear widely as fear of the death or injury of another person or of financial loss. Admissibility of the hearsay evidence rests only with the permission of the court.
The case has established that untested hearsay evidence required to be proved as safely reliable before its admittance and it is a matter for judges to decide in the light of all the other evidence adduced and as long as the safeguards available are applied fairly then such hearsay evidence or statement will be admissible. Section 124 (CJA) also ensures the fairness of trail when admitting hearsay evidence in the cases of absent witnesses due to fear.
The courts are of the opinion that the decisive or sole hearsay evidence does not result in the unfair trial, provided the combined counterbalancing measures of Common Law, PACE and Criminal Justice Act (2003) are rigorously applied.
In respect of fear a court must be satisfied to the criminal standard, that the proposed witness will not give evidence “through fear” and a causative” link between fear and refusal to give evidence must be proved. Every effort must be made to get a witness to the court to test the issue of his fear and may be cross examined by the defence (without the presence of accused/defendant). Court must also take steps to enable the fearful witness to give evidence and rigorously check the hearsay evidence. The interest of justice under s 116(4) may provide a useful checklist. The court has to assess what evidence could be admitted as to the credibility of the witness and hearsay evidence under s124.
hearsay evidence is not same as the first-hand evidence, it is second hand and it is difficult to test and assess. The Jury never sees the witness and cannot ask any question about the hearsay statement and more importantly, the defendant loses the ability to cross-examine the accuser. Sometimes the evidence is unreliable and sometimes it is in the interest of justice either to admit or to exclude the hearsay evidence.
Courts are under a great burden when it has to decide the issue of admissibility of hearsay evidence and it is not easy to balance the rights of the defendant under Article 6 and admissibility of hearsay evidence especially due to fear where the witnesses are reluctant to attend the trial and be crossed examined.
“At legalally, we offer a free consultation with our experienced lawyers. For further legal advice, you can book your free consultation now.”
What would you do next?
Your Partner in the legal world!