We should consider Hearsay Evidence, Statutory Accommodation in The U.K., since, after all, Grice was a Brit.
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
However, the reforms have both principled and practical
Principally, the rule, rooted in common law, ensures protection of
the accused by making inadmissible evidence, those that cannot be examined by
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
Practically, the 2003 Act modifies the circumstances to which the hearsay
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.
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.
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
A question arises as to what kind of assertions the rule
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.
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.
decisions are reasonably justified because the rationale behind EXCLUDING hearsay evidence would extend to these implied statements as well.
insincerity, possibility of concoction, inability of the accused to examine the
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.
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.
level, the evidence of calls was irrelevant and hit by the hearsay rule at
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.
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
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  and
115  , 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
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
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
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.
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
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
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
As seen above, S. 115(3) has led to more confusion than
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
It would be absurd to merely check whether the contents were
intended and to ignore the relevance of the same to the fact in
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
Again, this depends on what the ‘matter stated’ is determined to
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
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
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
But removing the applicability of the rule itself to certain
evidences cannot borrow this premise, there needs to be a stronger basis.
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.
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
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
In the case of Al-Khawaja  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.
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,  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.  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  and lacked clarity in developing jurisprudence on the exceptions
to Article 6(3)(d), a deviation from the same became inevitable.
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.
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  or the absence is
somehow directly caused by the accused.
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.
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
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.
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
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,
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
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
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.
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).
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.
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.
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.
Provisions Of The Criminal Justice Act 2003: So Far, Not So Good?"
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
Al-Khawaja And Tahery V. United Kingdom, (2009) 49
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.
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
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
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
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.
R V. Sellick, (2005) EWCA Crim 651.
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.
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.
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
The calls were not hit by S. 114 and thus became admissible.
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”.
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
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