IMPLIED ASSERTION: Grice v Grice

Speranza

We should consider Hearsay Evidence, Statutory Accommodation in The U.K., since, after all, Grice was a Brit.

Chapter 2, Part 11 of the Criminal Justice Act, 2003 (hereinafter “2003 Act”) seeks to re-define (or provide a new conceptual analysis -- hereinafter CA2) and regulate the exclusionary rule against hearsay and the permissible exceptions.

However, the reforms have both principled and practical difficulties.

Principally, the rule, rooted in common law, ensures protection of the accused by making inadmissible evidence, those that cannot be examined by him.

In this context, our conceptual analysis seeks to examine the issue of whether the 2003 Act reaches a middle-ground in trying to reconcile its international obligation to abide by the above principle and its domestic interest in prevention of crime.

Practically, the 2003 Act modifies the circumstances to which the hearsay rule applies.

Whether this achieves the purpose it aims at has been examined.

Here, the effect on an "assertion" that is unintended, more specifically "implied, but unintended",is specifically analysed.

As "implied but unintended" it OBVIOUSLY falls OUTSIDE Grice's idea of IMPLICATURE, which is always IMPLIEDLY meant.

Amongst the reforms brought out by the 2003 Act, one of the most significant is to re-define (or provide a new conceptual analysis, CA2) of the concept of hearsay, thereby impacting the hitherto rule of hearsay in both form and substance.

In general, the common law rule against hearsay operates to EXCLUDE assertions made out of Court which were used as evidence of the matter it contained.

The rationale behind the same was because apart from being unreliable and indirect, it adversely impacted the right of the accused to examine all the witnesses against him.

A question arises as to what kind of assertions the rule applies against.

It is in this context that the Griceian concept of ‘implied assertion’ (and its analysis) gains significance.

The issue is whether the rule would apply against those matters that could be inferred from an explicit utterance, where the contents of the latter per se are not in issue.

The answer to this came in the case of Wright where the court reasoned that when one deems an implied assertion to be an explicit utteranceand the latter would have been excluded, in such cases, it became imperative to extend the hearsay rule against such assertions as well.

Similarly, in the case of Teper the identity of the accused was proved with the evidence of a police officer who heard a woman shout out to the defendant at the time of incident, exclaiming at the fact that he was running away.

The Privy Council in the case rejecting the evidence held that the statement was being used as evidence to show that the accused had been identified, as can be implied from the statement that the policeman heard, if which were an explicit utterance would have been excluded as the woman did not appear in court.

Arguably the decisions are reasonably justified because the rationale behind EXCLUDING hearsay evidence would extend to these implied statements as well.

Risk of insincerity, possibility of concoction, inability of the accused to examine the maker etc.

However, the court here is making an objective inference as to the underlying assertion and attributes the same to the maker.

This does not address the problem where the maker of the utterance did not INTEND to convey what the Court infers from his statement.

Kearley, 1992

The Court in the case of Kearley faced a peculiar situation where the evidence available with the prosecution trying to prove possession of drugs with intention to sell was the list of seventeen telephone calls that the police received on the phone of the accused when they were on the spot investigating the case.

The House of Lords in a 3-2 majority held the evidence to be inadmissible on two grounds.

It is to be noted that the calls received were requests for drugs and those were being used by the prosecution to imply that the person was actually a drug seller.

At one level, the evidence of calls was irrelevant and hit by the hearsay rule at another.

The fact in issue was whether the accused, K was a drug-dealer and to that extent, the evidence of telephone callers placing orders indicated only the state of mind (or psychological attitude) of the potential buyers themselves and not that K intended to provide them the same and therefore irrelevant.

But certain calls which were relevant remained inadmissible because of the rule of hearsay, because “implied assertions” were as much part of the scope of the rule as were explicit utterances.

Though the fact in issue was not explicitly uttered, expression was to that effect and must thus be excluded.

Whether the Court adopted the rule of hearsay as an excuse to evade the tough questions of credibility of the callers, verifiability of their beliefs and the reliability etc. is debatable.

In any case, the implications of this decision are huge and the case has been subject to criticisms at several levels.

By extending the width of the rule, the prosecution’s burden was greatly increased and stood as an obstacle in the development of exceptions to the rule, which was the trend then.

Another plane at which the decision was criticised was for the lack of traditional dangers in hearsay explicit utterances

Implied assertions are less vulnerable to concoction and to insincerity than explicit utterances because it is ‘easier to tell a lie than to act one’.

Further, a common practice adopted by courts is to look at the conduct of persons concerned in order to aid inferences about their role in the concerned facts.

This practice now faces a hearsay attack as a result of Kearley.


The Law Commission Report which recommends statutory codification of the common law rule of hearsay, for purposes of clarity and consistency, considers the above-mentioned criticisms levelled against Kearley.

The 2003 Act, which was largely based on the recommendations, aimed inter alia to “overturn the ruling in Kearley”.

Though the exceptions to the rule retained largely the same form in the statute as in common law, the rule itself has been ALTERED (and its accompanying conceptual analysis of 'hearsay') in terms of what qualifies as hearsay evidence.

As set out in Ss. 114 [14] and 115 [15] , an evidence must be an utterance not made in oral evidence in proceedings… in evidence of any matter stated in order to come within the hearsay rule.

The definitions in S. 115 of the terms used in S. 114 has the effect of narrowing the latter to only statements, whose makers had the purpose of the conditions set out in either 115(3)(a) or (b).

This implies that if the purpose of the maker is not to assert or cause the other party to believe or act, it falls out of the purview of the exclusionary rule.

It is not all kinds of implied assertions but only those UNINTENDED assertions (a Griceian oxymoron, if ever there was one!) were sought to be left out of the application of the rule.

Though the intention was technically to overrule Kearley which dealt with implied assertions, the framing of the relevant sections has modified the position on explicit utterance as well.

Therefore, any utterance must have been INTENDED by the utterer to make the addressee to believe or act on the basis of the uterance’s content.

It is important to analyse the status of those assertions that are no longer made inadmissible by virtue of being hearsay.

Categorizing a certain piece of evidence as hearsay does not necessarily mean that the sources of the indirect statement are necessarily unreliable.

The converse holds good as well.

A statement does not automatically become admissible simply on the ground that it is not hearsay.

It seems obvious that the relevance of the evidence must then become the test.

A valid argument which then becomes possible can be stated as follows:

Only that part of Kearley dealing with "unintended implied assertions" (a triple Griceian oxymoron) is overruled and thus the finding of irrelevance, of the seventeen telephone calls to prove that X is the drug seller, still holds.

This argument came to be expressly rejected this argument in R v. Singh (2003) which brought to light the several problems in the statute.

The inter-relationship between S. 114 and S. 115, further depends on the interpretation of S. 118 as to whether the 2003 Act replaces the common law rule per se or just codifies the exceptions.

An argument made was that the Act only restates the common law rule, which meant that hearsay outside parameters of S. 114 was possible and thus inadmissible.

The court ruled that the deeply obscure relationship between Ss. 114 and 115 read with S. 118 clearly indicated the abolition of the common law exclusionary rule.

Therefore, a statement falling out of S. 114 would NOT now be hearsay, as was in the facts, and admissible.

The surprising feature of this case is that despite holding that the Chapter 2 of the 2003 Act did not apply to the evidence adduced.

It held that S. 118(1)(7) or S. 114(1)(d) could also be used for admitting the evidence in issue.

Singh was a case relating to conspiracy, where the participation of the accused was sought to be proved by showing mobile records of co-accused.

A cause of concern is when the purpose of the maker and the purpose of the party adducing evidence do not coincide which came up in the case of Leonard.

Here, the texts sent by certain people to the accused regarding the quality of certain drugs, the possession of which he was charged with were brought to show that the implied assertion was that he is a drug dealer.

The matter for which the messages relating to quality were used was to show that there had been supply, however, the purpose of the texter was to convey his opinion about the quality and there was no need for him to cause the other party to believe that he had supplied him previously.

However, the court seems to have wrongly interpreted the 2003 Act and held the evidence to be inadmissible hearsay.

As seen above, S. 115(3) has led to more confusion than solution.

It is not clear whether the purpose of the maker has to coincide with the matter for which it is being brought to the Court or for the truth of the contents.

It would be absurd to merely check whether the contents were intended and to ignore the relevance of the same to the fact in issue.

Another apparent problem that may arise is the conflict between S. 115(3)(a) and (b).

For example, applying the facts of Kearley, though the Law Commission sough to reverse the decision, the messages placing orders of drugs can be inferred to mean that the maker’s purpose is to ensure that the other person acts on the basis that since he provided drugs previously, he is expected to continue.

Again, this depends on what the ‘matter stated’ is determined to be.

In any case, this leads to a situation where something that was not intended by the lawmakers to come within the purview of the hearsay rule, tends to get attracted by S. 115(3) and thus faces inadmissibility.

The issue of re-definition (or the provision of a new conceptual analysis) for 'hearsay' has naturally affected the scope and applicability of the Rule, which, as observed above, has been greatly narrowed.

As one of the primary justifications for exclusion has been the rights of the accused, the 2003 Act is vulnerable to several debates and thus faces a huge burden in showing how the dilution of the rule against hearsay does not necessarily mean a violation of the rights of the accused.

The U.K. as a member of the ECHR faces the obligation under Article 6(3)(d) of the ECHR to ensure the right of fair trial in terms of cross-examination of the witnesses to everyone.

Accepting certain hearsay evidences as admissible exceptions to the rule is based on the premise that the rights as are found in the ECHR are not absolute.

But removing the applicability of the rule itself to certain evidences cannot borrow this premise, there needs to be a stronger basis.

The Human Rights Act specifically mandates the courts to interpret legislation in conformity with the Convention.

Generally, that the Courts are vested with excessive discretion in admission of hearsay evidence, by virtue of S. 114(1)(d) is relied upon to argue that the Convention obligations are violated by the 2003 Act.

However, it is to be noted that the discretion is vested not only for furthering matters of admissibility but for rejection as well. Apart from the general discretion of Courts to exclude evidence.

The rights of the accused find protection as the Courts are permitted to stop the case when it opines that the prosecution’s case is wholly or partly based on admitted hearsay evidence which when relied upon for basing conviction would be “unsafe”.

Thus the conferment of discretion regulating inadmissibility functions as a balance against the excessive discretion to admit evidence, and in that sense, the 2003 Act is compatible with the Convention.

Nevertheless it is arguable that the use of the term ‘convincing’ indicates that the consideration is not the rights of the accused but the reliability of the evidence irrespective of the impact on Article 6.

This leads to the next issue of sole or decisive rule of evidence, wherein the validity of conviction based wholly on hearsay evidence is questioned.

It is to be examined whether the safeguards mentioned earlier take the admissible evidence under the 2003 Act out of the purview of the sole or decisive rule.

The European Court of Human Rights addressing the dispute in the case of Luca v. Italy that the provision of opportunity to the accused to test the witness was of prime importance which meant that using unexamined witness as the sole basis for conviction affected Article 6(1).

In the case of Al-Khawaja [32] concerning statements admitted on grounds of unavailability due to death, the counter-balances were found inadequate to permit a decision on the sole dead witness’ statement.

The Court of Appeal’s observation that right to cross-examination was merely one of the rights and thus admission of the evidence was not incompatible with the overall concept of fair trial was found faulty. Since the case was about a dead witness, the Court of Appeal had concluded that there was strong public interest in making such evidence admissible, and that the test is to look for fairness in the proceedings as a whole.

Al-Khawaja rejected the reasoning that the substance of Article 6 was merely illustrative of the considerations for a fair trial, but were express guarantees.

Though the rights under Article 6 are not absolute, in the case, the counterbalances urged by the government were found to be of limited weight.

The difficulty in this judgment is that the Court does not involve in explaining what would constitute sufficient safeguards, especially in the case of a sole dead witness. Effectively, as a result of this judgment, the Courts will be left helpless whenever the only main witness is a dead one making conviction impossible in such circumstances. The English Courts have often stressed the need to follow certain procedures for counterbalancing the risks that might arise from compromising on Article 6(3)(d) in cases of necessity, [36] such as: proper direction to the jury regarding the quality, reliability of the evidence and the subsequent disadvantages to the accused. Nevertheless, with the 2003 Act, greater emphasis on such processes is required in light of the alteration of the scope of the rule which has resulted in admission of hearsay evidence in many more circumstance.

The Supreme Court in Horncastle agreed with the decision of the Court of Appeal which responded heavily against Al-Khawaja. The effect of this decision is that the presence of the safeguards, found to be sufficient by the Supreme Court, makes the sole or decisive rule unnecessary in domestic jurisdiction. [38] In ruling against the Strasbourg Court’s decision, the Supreme Court speaking through Lord Phillips held that since that Court’s decision did not sufficiently appreciate the domestic Court’s practices [39] and lacked clarity in developing jurisprudence on the exceptions to Article 6(3)(d), a deviation from the same became inevitable.

The common law exceptions, subsequently codified by the 2003 Act were all based on a thorough analysis of the need to balance the two competing interests. Since the Act was itself based on considerations of justice and fairness, it constituted a composite code in itself. Applying the sole or decisive rule over the provisions of the 2003 Act would be to subvert the intention of the lawmakers which was to comply with the Convention in arriving at the exceptions to hearsay rule.

The practice in UK domestic courts has been in favour of admissibility, thus a series of cases have found that Article 6 is not violated by the mere absence of right to cross-examine. The consideration for this, as mentioned earlier, has been to look at the fairness in the proceedings holistically. Protection of witnesses from intimidation has been held to occupy one of the important reasons in deviating from the Strasbourg law.

A significant point that emerges from the judgment is the paradox in applying the sole or decisive rule as pointed out by Lord Phillips. If the rule were to be applied, it leads to a situation where a piece of evidence is relied upon more when it is peripheral which loses its value when it becomes cogent and more relevant.

The two points to be considered as held in Horncastle are

1. Whether there is a justifiable basis for the absence of the witness? and

2. Whether the reliability can be tested? The Supreme Court held that the Strasbourg case-law with respect to sole/decisive rule were in cases where either or both of the tests were not satisfied, therefore, the decision in Horncastle was justified.

Reconciling the extreme stances taken by the European Court of Human Rights and the English Courts is certainly difficult. On one hand is the question of fairness to the accused to be able to challenge every case against him and on the other is the problem of burdening the prosecution which is impossible to be relieved due to several circumstances. A disadvantage that arises from Horncastle is that some of the safeguards such as determination of reliability of unexamined witnesses by domestic Courts cannot be easily fulfilled. But strict compliance with the sole or decisive test will be dangerous because it gives an incentive to criminals to intimidate or kill their witnesses to escape conviction.

It would be a misrepresentation to say that the decision in Al-Khawaja envisages an absolute scope for the sole/decisive evidence rule. Though the Court emphasized rigorous protection of the accused, it did recognize certain situations as special circumstances wherein the inability to bring the witness to the court could be a reason for relaxing the sole or decisive evidence rule such as: absence of witness because of intimidation by the accused himself [42] or the absence is somehow directly caused by the accused.


As observed earlier, the 2003 Act brings to the fore more problems and than solutions. At one level, the Act is commendable for it reinforces the test of relevancy. By making the rule of hearsay narrower than its previous form, the Courts will have to look at issues of relevancy and reliability. However, in defining the concept for this purpose, there are two main difficulties that emerge. The meaning of ‘matter stated’ as in S. 115(3) read with S. 114 makes scope for ambiguity very wide. On one hand, it is near –impossible for the Courts to determine what the purpose of the maker of any statement is and on the other, the operation of one clause can be circumvented by using the other (i.e. S. 115(a) and (b)). It would have been better if the Act unequivocally expressed in one clause what circumstances would qualify as hearsay.

On the issue of reconciliation with Article 6, though there are safeguards entrenched in the 2003 Act, they do not specifically work in favor of protection of the accused, which is mandated by ECHR. There is no concurrence of views on the question of sole/decisive evidence being hearsay. It is submitted that adopting a strict rule or a total abolition of the sole/decisive evidence rule would not serve the purpose. Intelligible reasons need to back convictions on the basis of hearsay, as laid down in Al-Khawaja.

 Till the judicial courts reconcile the Horncastle-Al-Khawaja debate, it is imperative to adopt temporary measures to cushion out absence of witnesses from trials, such as pre-trial questioning of witnesses who are vulnerable, etc.

REFERENCES

Adrian Keane, Modern Law Of Evidence, New York: Oxford University Press. Chapter 10 of this book lays down the background, rationale behind the rule and leads into the 2003 Act. The 2003 Act has been fully examined by the author. Part C dealing with Implied Assertions has been referred to in the course of the paper. Adrian Keane argues that S. 115(3) by defining ‘matter stated’ has modified the law significantly.

Cross and Tapper On Evidence, United Kingdom: LexisNexis Butterworths. Chapter XIV analyses in detail the working of the hearsay rule in criminal proceedings. The fundamentals of the rule have been thoroughly explained with illustrations.

Ian Dennis, The Law Of Evidence, London: Sweet and Maxwell. In Chapter XIV of this book analyses the concept of hearsay both prior to 2003 and after 2003, thereby giving a comparative perspective.

J.R. Spencer, Hearsay In Criminal Proceedings, (Oregon: Hart Publishing. Having worked on the Consultation Paper for the Law Commission, J.R. Spencer gives an insider’s view of the evolution of the 2003 Act and its implications. A specific chapter has been devoted for an analysis of the issue of clash with Article 6, ECHR, which has been used in the paper.


J.R. Spencer, "Hearsay, Relevance And Implied Assertions," The Cambridge Law Journal, vol. 52.
After examining the arguments and the three-levelled (1. Hearsay. 2. Relevance. 3. Scope for fabrication) decision in Kearley, the author proceeds to examine the justification for the exclusionary rules. J.R. Spencer argues that it is not always true, as was claimed by the majority in Kearley, that the basis for the exclusion of hearsay evidence is the protection of the accused. It works both for and against the accused. He says that the present (as on 1993) rules of hearsay lead to unexpected results such as convicting the innocent and acquitting the guilty. He points out the irony in the process: out-of-court statements in the form of confessions are admissible, and an exception to hearsay, whereas an out-of-court statement about innocence is inadmissible.

Stuart Wallace, "The Empire Strikes Back: Hearsay Rules In Common Law Legal Systems And The Jurisprudence Of The European Court Of Human Rights", 4, European Human Rights Law Review,
This article throws light on the issue of the rights under Article 6(3)(d) in the context of the Criminal Justice Act, 2003 and analyses, by examination of case-law in domestic courts and the European Court of Human Rights. Arriving at a contrast between the decisions of the two Courts, the article suggests that the burden remains on the Strasbourg Court to clarify its own position. The author argues against the sole/decisive evidence rule as it has several negative side-effects.

D. C. Ormerod, Hearsay: A Case Comment, Criminal Law Review,  D. C. Ormerod provides an analysis of the decision of the Court of Appeal in the case of R v. Sukadeve Singh, (2006) EWCA Crim 660. He contextualises the debate over applicability of the hearsay rule to implied assertions by giving instances of several circumstances which lead confusion. Comparing the decision in Singh to Kearley, he holds that the decision that the 2003 Act fully abolished the common law rule and the decision in Kearley is sound because otherwise there then would have been multiple sources of hearsay, one from statue, one from outside etc. He, however, points out the problems in practically applying S. 115(3) as inferences can always be made. Further sub-clauses (a) and (b) work against each other in certain peculiar circumstances, thereby frustrating the scheme of the Act.

J. R. Spencer, "Hearsay Reform: The Train Hits The Buffers At Strasbourg, A Case Comment", 68(2), Cambridge Law Review,  The case of Al-Khawaja & Tahery v. United Kingdom, (2009) 49 E.H.R.R. 1, decided by the European Court of Human Rights is analysed in this article. The 2003 Act seems to contradict the obligations under the ECHR, the interpretation of the latter by the Strasbourg has been very wide thereby questioning the validity of the Act.

In the UK, the interpretation of the Article is instrumental in the sense that its purpose is to prevent baseless convictions etc. Safeguards were seen as adequate cushion against violation of Article 6, which came to be rejected in the case of Al-Khawaja. J. R. Spencer argues that the suggestion of pre-trial examination, at least of those witnesses that the Court finds to be vulnerable, is sound and deserves to be incorporated in the Act.

Ed, Hearsay Evidence And Article 6, 5, Criminal Law Review, The editorial argues that admission of hearsay evidence on the basis of doing justice to the victim, or the inherent quality of the evidence cannot succeed. But this does not mean that hearsay evidence always requires other evidences as corroboration in order to be used. The case of Al-Khawaja recognised certain special circumstances where the admission of hearsay even as sole evidence would be justified. There are 3 classes: where the accused causes the absence of the witness, where the evidence is the previous statements of the witness, and where the statements not made for the purposes of investigation.
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Marny Requa, Absent Witnesses And The UK Supreme Court: Judicial Deference As Judicial Dialogue, 14(3), International Journal Of Evidence And Proof, 2010, 208-231. This article examines the clash between the hearsay rule (as codified in the 2003 Act) and the rights of the accused guaranteed under Article 6 of ECHR. This is dealt with in light of the recent clash of judgements delivered by the European Court of Human Rights in Al-Khawaja and the UK Supreme Court in R v. Horncastle. The latter was backed a sense of over-confidence in the 2003 Act and thus resorted to its own diluted interpretation of the Article. The Strasbourg on the other hand, has been emphasizing rigorous protection of the accused and thus found “other safeguards” as insufficient balance to convict accused on the sole basis of hearsay evidence. The issue, according to the author, is just a tip of the iceberg in the clash between ECHR standards and domestic law and the corresponding obligations of domestic courts.

Diane Birch and Michael Hirst,
" Interpreting The New Concept Of Hearsay", Cambridge Law Journal, vol. 69.

----------------- A NEW CONCEPT, A NEW ANALYSIS -----

The 2003 Act, according to Birch and Hirst in re-drawing the concept of hearsay has brought to the fore several problems.

The most relevant ones are the "definitional" or conceptual-analytic issues, implications on implied assertions, narratives etc.

Birch and Hirst argue that S. 115(3) has failed to serve the purpose for which it was created but has led to ambiguity.

The problem is that the emphasis is placed on the maker of the statement and his purpose, who is unavailable to the Court.

Birch and Hirst envisage situations where there is a difference between the purpose for which the evidence is adduced and for which the statement maker made it.

It then automatically becomes admissible though they are not relevant for its own truth.

The burden of the prosecution thus necessarily becomes greater to prove that the maker has no purpose to make the other part believe the relevant fact. He argues that the confusion would have been avoided had the Act made it clear in S. 114 itself rather than complicate with S. 115(3).
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David Ormerod, Evidence: Hearsay – Admissibility Of Mobile Phone Text Messages, A Case Comment, 12, Criminal Law Review.

Ormerod examines a recent case, R v. Bains, (2010) EWCA Crim 873, in light of the ruling in Kearley, the changes by the 2003 Act and the decision in Leonard.

The evidence used in the instant case was text messages on the mobile phones found in the possession of the accused, which the Court of Appeal found to be admissible in the interests of justice. He observes that S. 115(3) is a difficult provision to apply. He argues that the difficulty in the 2003 Act is that the Courts earlier had to merely look at the admissibility issue keeping in mind the dangers involved in accepting the evidence. Post 2003, Courts face the problem of fitting the evidence within the definition, which involved the near impossible process of determining the purpose of the statement-makers. He argues that in such cases, using S. 114(1)(d) must be accepted as a valid reason for accepting evidence as it also involves considerations of the rights of the accused.

Stephen Uglow, Section 115(3) Of The Criminal Justice Act, 2003: "How Not To Overturn Kearley", 5, Archbold News, 2005, 6-7.

It is to be noted that the article was before the decision in the case of R v. Singh came to be passed and in fact, one of the parties cited this article in support of its contentions.

This paper argues that the 2003 Act does not replace the common rule but also restates it.

Therefore, there can be out-of-court assertion that are hearsay but not covered by the Act. In this context, the category of evidence that Kearley found to be hearsay continue to remain so. This is because though the intention was to overrule Kearley, the statute was not framed for that purpose. As a result, such evidence will always remain inadmissible and the Courts will have to derive a separate exception for Kearley evidence.

Di Birch, Criminal Justice Act 2003:
"Hearsay: Same Old Story, Same Old Song", 4, Criminal Law Review.

The article makes a critical analysis of the hearsay provisions of the 2003 Act and calls it a timid response. He argues that the discretion entrenched in the Act is not necessarily a bad thing. He finds the provision in S. 115 to be problematic, countering which would be possible under S. 114(1)(d). In light of S. 78, Police and Criminal Evidence Act and the burden to prove the lack of intention of the maker, the prosecution faces a hug difficulty, whereas the defence has the ability to make free play with purposes.

Tom Worthen,
"The Hearsay Provisions Of The Criminal Justice Act 2003: So Far, Not So Good?"
Criminal Law Review.

Tom Worthen argues that excessive discretion has been conferred by virtue of S. 114(1)(d), which, though by itself is not a demerit of the Act, when seen in light of recent interpretations of the Court, it has been used as an easy escape route for Courts fro the procedures detailed in the Act. This practice results in frustration of the scheme of the Act wherein different technical procedures have been described for specific circumstances.

Cases

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Al-Khawaja And Tahery V. United Kingdom, (2009) 49 E.H.R.R. 1.

This case decided by the European Court of Human Rights was concerned with a complainant of indecent assault, who was the sole witness as well. While the Court of Appeal held that in convicting the accused there was no violation of Article 6, the European Court of Human Rights reversed this decision and held that mandate of Article 6 was not counter-balanced with adequate safeguards as alleged by the government. Though there may be ‘special circumstances’, the sole/decisive evidence rule applies strictly.

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Luca V. Italy, (2003) 36 E.H.R.R. 46.
In this case dealing with drug trafficking, the European Court of Human Rights held that when a conviction is being based on unexamined witness to great degree, that the accused has no opportunity to examine the evidence against him works in contravention of Article 6 of ECHR.

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R V. Horncastle, (2009) UKSC 14.

Three appeals were heard and dismissed by the Supreme Court in this case from the Crown Courts. In all the 3 cases, the witnesses were absent and their statements were brought to the Court under S. 116 of the 2003 Act. Lord Phillips, delivering the judgment, found the decision in Al-Khwaja to be faulty. It was held that the 2003 Act contained adequate safeguards and the exceptions to the principle of hearsay had in-built protection measures and were thus not incompatible with Article 6. Further, the sole/decisive evidence rule did not apply to the U.K. The convictions were upheld.

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R V. Kearley, (1992) 2 AC 228.

In this case, the accused was charged with dealing in drugs and the evidence that was submitted to this effect was the statement of the policeman who had gone to the spot for investigation.

The policeman statement was about seventeen telephone calls that the accused received on his phone, all of them demanding drugs.

The Court rejected the admissibility of the evidence on the ground that what was implied from them, if express, would have been barred by the hearsay rule.

The Court was being asked to rely on the statements of unidentified witnesses unavailable in Court, thereby the rule was attracted.

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R V. Leonard, (2009) EWCA Crim 1251.

Here, L was charged with possession of drugs with intent to supply and the evidence raised by the prosecution were two texts received on his phone describing the quality of the drugs. The Court held that in light of the 2003 Act, the purpose of the makers will have to be gone into and in this case, the texts implied that L was a drug seller. S. 114 barred such statements and they were found to be inadmissible for not fulfilling any exceptions.

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R V. Sellick, (2005) EWCA Crim 651.
The defendants in this case were charged with murder and written statements were accepted of the witnesses, their absence being caused by intimidation by the accused himself. Here, the Court of Appeal held that basing conviction on the available evidences was not in violation of Article 6 as the accused deprived himself of the opportunity to have the witness on Court.

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R V. Sukadeve Singh, (2006) EWCA 660.


The prosecution’s burden in this case was to show that a particular accused is guilty of kidnapping the appellant.

The prosecution sought to prove the guilt by showing calls registered on the telephones of the co-accused and convicts, which were claimed to be from the phone of the accused.

The exact issue in concern was whether the evidence was affected by the hearsay rule as incorporated in the 2003 Act.

The Court observed that the relationship between Ss. 114 and 115 was deeply obscure.

However, the 2003 Act fully replaced the common law rule of hearsay and therefore, the decision of Kearley is no longer good law.

The calls were not hit by S. 114 and thus became admissible.

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Teper V. R, (1952) A.C. 480.
This was a case where the accused was charged with the crime of arson.

The police officer on the spot had heard a woman screaming out to the accused,

“Your place is on fire and you going away from the fire”.

The statement of the unavailable witness was sought to be brought to the Court, which came to be rejected on the ground that the Court would have to place reliance on the accuracy of the woman’s perception, which cannot be included.

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Wright V. Toe Tatham, (1837) 7 Ad. & E. 313.


The Court here was concerned with the issue of sanity of the will-maker at the time the will being prepared. The evidence relied upon to prove his mental capacity was a series of letters written to him by different persons. These were being used to show that there was an understanding in the tone of the letters that the person to whom they were addresses was sane. The Court rejected the evidence on the ground that if the assertion that the person is sane had been expressly made in those letters, they still would have been hit by the hearsay rule.