IMPLIED ASSERTION: Grice v Grice

Speranza

An "implied assertion" is a statement (or  conduct) that implies some fact. Did I invent that? No. Did Grice  invent that? No. It's LEGALESE:  Hart _analysed_  that (or if he didn't  he should've).

There  are varying opinions as to  whether "hearsay  evidence" of an implied assertion should be "admissible" in  court to  prove the TRUTH of the contents of the implied assertion. Sounds odd?   Well, it's  not that difficult.

Consider the question, "Have you got any charley?", where "Charley" is slang for cocaine -- rather than   a  silent film featuring Charlie Chaplin. Grice would   distinguish  between "Have you got any charley" IMP. X, where X  is  whatever is  IMPLICATED by the question. But then, to honour
Strawson,  Grice would also  consider, "Have you got any charley" PRES. Y, where Y is  whatever is PRESUPPOSED by the  question. A question is  NOT an  assertion. "Snow is  white" is an assertion. So the idea  is  that something asserted is  implied by some utterance.

While  an implied   assertions IS considered hearsay, it is generally considered more  reliable than  a REGULAR statement or assertion, as an  implied  assertion is far less easy to  fabricate. But then, try  to  read and understand Dummett on "CONDITIONAL  assertion", and fail!

In fact, in R v Sukadeve Singh 2006 EWCA Crim. 660,  2   Cr.App.R 12, Rose LJ, gives the judgment of the court and says this  at   paragraph 14.

When sections 114 and 118 of the Criminal  Justice Act 2003  are read together the sections,
in our  judgment, ABOLISH -- or  as Popperian Palin would prefer, 'refudiate'  -- the common law  hearsay  rule (save the components which are  expressly preserved [This type of ceteris paribus defeater  fascinated a defeatist like H. L. A.  Hart!) and  create instead a  NEW rule AGAINST hearsay which does NOT  extend to IMPLIED   assertion. SO in the NEW RULE, "implied assertion" is  what Grice,  emphatically, calls a "no no". WHAT WAS SAID -- or as  Grice  expressed, "EXPLICITLY  COMMUNICATED" -- by the telephone callers   ("We want some charley") in Kearley is  NOW admissible as  DIRECT  evidence of the fact that there was a ready market for  the supply of  drugs from the premises, from which evidence could be  INFERRED an
intention by an occupier to supply  drugs.

Rose concludes: "the view  of  the MAJORITY in Kearley,  in relation to hearsay, has been set aside  by the Act"  -- which  is a pity, since, after all, it was a majority,  even if apparently  it  was the minority who was right!

In Sukadeve  Singh (a  different case,  2006), the content of the utterances in each   telephone entry was held NOT to be  a matter stated within section  115  but to be one such monstrosity, that of AN  IMPLIED  ASSERTION, which IS NOW ADMISSIBLE because it is no longer  "hearsay"  -- the conceptual  analysis of 'hearsay' has changed --  implied assertion does not count,  and that is that.

But back to  fourteen years earlier: R v  Kearley  (1992) 2 AC 228. "Kearley", as  the case is abbreviated as, is a   case that may be taken as  concerning the rule on the conceptual analysis  of  "hearsay" and  admissibility of evidence -- and it evokes the  concept of an   'implied assertion' (Legalese if ever there was one).  "Is there any  charley?"  was a question, an utterance in a telephone  conversation.  But this question  carried an IMPLIED ASSERTION: that  charley was  available and the Kearley was selling charley.

The  appellant  (Kearley aka Chippie) is charged with  possession of drugs, and,  worse, intent to supply. Some of the police that  arrests Kearley stays behind to search Kearly's house during which time Kearley    receives seventeen telephone calls requesting for supply of drugs ("Have you got  any
charley?") None of the seventeen telephone callers was asked to   provide evidence in court. The police was. That's the UK   forya!

The counsel for the  appellant argues that the evidence  --  the utterances in the seventeen telephone  calls -- is  irrelevant  because the evidence only illustrates the state of  mind  of each of the  seventeen telephone callers, not the state of  mind of the   accused.

If they think there's charley, that's  THEIR problem, not  Kearley's! This,

however, fits the Griceian  paradigm. "Have you got any charley?" EXPRESSES A BELIEF that charley  may be found there. Why call  otherwise? The counsel, to look  intelligent, cites Subramaniam v. Public  Prosecutor 1956, and   Blastland and Woodhouse v. Hall 1980. It is  also contended that the  number of  calls -- seventeen -- does not make  the evidence more  relevant because if one  telephone call is irrelevant, 17 calls  are equally irrelevant. This follows from  a maxim that Grice  admits is 'terse': "Be relevant!".

It is held in  Wright v.  Doe  1837 that evidence is only relevant if weight can be  properly  attached  to it as a step towards PROVING an issue in the case. This case  --  Wright v. Doe, 1837 -- is concerned with a  similar (if Victorian)  issue,  where the court holds that the  sanity of the testator
as expressed by a third  party's letter  addressed to the testator is  INadmissible because of hearsay.   Britons use 'hearsay' broadly: a  letter does not say nor hear, but  so  there!

The majority of the  court (with two important  lords,  Browne-Wilkinson and Griffiths,  dissenting) finds that  the evidence is  irrelevant. And the majority  find the evidence  is irrelevant because it only  shows or displays a belief  manifested in the minds (or psychological attitudes,  as Grice prefers)
of the telephone callers that Kearsley would supply    drugs.

The evidence says nothing about whether Kearsley actually   supplies  drugs. This is ripe for Griceian analysis. He  usually  taped  conversations. "Have you got any charley?" is  surely  different from  the REGULAR assertion, "I need some  charley, NOW." It was a pity the policeman was not being sincere,  "Sorry, I'm a cop;   there's really nothing I can about that, now  -- And the sad thing is that
I can't forward your message to the  intended addressee as it   happens."

Surely (ii) does not  ENTAIL that K has charley, so I cannot  see  why Browne-Wilkinson  and Griffiths disagreed! And even if the  evidence IMPLIES the notion  that Kearsley was a supplier of drugs, the  evidence was EXCLUDED,  by the conceptual analysis of "hearsay" in the  hearsay rule, and  thereby rendered  inadmissible. Griffiths   dissents.

Griffiths says that he agrees with Lord   Browne-Wilkinson  that the appeal should be dismissed. Griffiths sees  the  admissibility  of such evidence as a matter of "common sense"  -- "the least  common of  the senses," he adds for humorous  effect. As long as weight can be   attached to the evidence, it should be admissible.

Is the sole  possible  relevance of  the UTTERANCE ("We need charley") that by  manifesting the  telephone  caller's belief that the defendant is a  supplier?  Griffiths cites the argument  of the counsel for the  plaintiff in  the case of Wright v. Doe, 1837, arguing  that THE LETTER  can be used
to show an ordinary course of life, which is  relevant to  the  case.

If a letter was written in a foreign language it  would   show that the testator knew that foreign language. Griffiths, being  a   clever lord, believes that inferences will always be drawn.  Therefore,  the  existence of multiple possible inferences is  immaterial to the  admissibility of  the specific
evidence. What  is not immaterial is the  consistency of the  inferences.

In  Blastland, all the inferences are  equally consistent or  plausible,  whereas in the Kearsley case it is  clearly more plausible that   Chippie WAS supplying drugs -- hence the  seventeen telephone   calls.

According to Lord Ackner, however --  another clever lord,  Ackner,  not Blastland -- I have to keep making  this explicit for  Geary -- in  Blastland, if one was to draw a relevant  fact by  means of a NECESSARY  IMPLICATION (rather than implicature)  from  a person that is not called a  witness, it is INadmissible as   hearsay.

But, as Geary reminds me, in  the case of Ratten v.  The  Queen, Lord Wilberforce supports  the notion that  the  IMPLIED  ASSERTION of a relevant fact is EXCLUDED by the hearsay rule.  The  fact  must be relevant -- or asserted directly, NOT  IMPLIEDLY. No implied   assertion, but REGULAR assertion. No implicit assertion, but explicit  assertion.  The fact that in the  current
case the act of telephone  calling the accused per  se is  completely irrelevant to his  accusations. Hence it is irrelevant   _simpliciter_ ("If relevancy
were a  simple thing. It never is!"  -- Geary).

Ackner nonetheless goes  on to conclude that  implied assertion should NOT be excluded as  hearsay, thus  dismissing the appeal. Ackner believes that this evidence is   INadmissible. The evidence is an oral request for drugs to be  supplied  by the appellant. The utterance "Have you got any  charley?"
was NOT made  in the presence of the appellant, NOR in the a  scenario were the  appellant was the actual addressee, NOR by a  witness. The evidence  "invites"  the jury to draw the inference  that the appellant was a drug  dealer (vide Zwicky  on implicature  as an invited  inference).

The evidence is only able to show that  the telephone callers  are under the impression that Chippie will  supply drugs to them. But  such impression says nothing about  whether Chippie actually does supply  drugs to them, or INTENDS  to  supply drugs to them.

The evidence  is evidence only as to  the state of  mind (or psychological attitude,  to use Grice's  parlance) of the seventeen  telephone callers, who  wished to  obtain drugs and thought that the accused would  supply them.  Therefore, even if the prosecution is able to get the seventeeen   telephone callers to testify, it would still be INadmissible in    court.

Oliver argued that a piece of evidence is relevant if it can   be  said to be probative. The seventeen telephone calls are  irrelevant.  The  seventeen telephone calls must show that the  accused IS  supplying  drugs.

But all they do is show that the  telephone callers  BELIEVED that  the accused (or someone living  in the same premise as  the accused) is supplying  drugs. Oliver  said, just to provoke  Griffiths (it's amazing how a lord can  contradict another lord with a  straight face, too, and a wig) that a  layman's approach is not a good  guide in a criminal trial. Oliver  adds, contra Griffiths,  that using  "common sense" as a  determinate of relevance is inadequate. The   existence of  potential custom does not establish intention of the supplier.

Browne-Wilkinson thinks that the seventeen telephone  calls  are  relevant because they show people are resorting to the  premises  for the purpose  of obtaining drugs from the accused.  Though such  circumstantial evidence may be  inadequate, the jury  may nonetheless  draw an inference from it. I.e.
an implied   assertion from "Have  you got any charley?" Such existence of a  potential market  shows an  opportunity for the accused to supply  drugs. Similarly, if a   coffee-shop had people lined up outside to buy coffee, the chances are that  the  owner of the coffee-shop  intends to sell coffee. Just because the  seventeen  telephone  calls were irrelevant does not mean they cannot go  towards proving  a  relevant fact.

An alleged implied assertion which  is  derived from  irrelevant evidence can be relevant. The number of   calls -- seventeen -- is also  relevant because it shows the size  of  the potential market hence the size of  opportunity to sell.  If the  callers were able to testify, Browne-Wilkinson sees  no  reason why they  should be prevented, hence no reason to prevent the  police.  The NZ  case of Davidson v. Quirke 1923 is cited to show  that calls were   relevant. The case was concerned with illegal  gambling and the big number  of  telephone calls made to place  bets.

So long as the fact is  relevant in  the sense that it  tend to prove an issue of fact in the  case it should be   admissible. 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 -- Let's call that 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. There's 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.

Back to 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,  as McEvoy notes, 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. An  alleged  implied assertion  is thought, by a lawyer, to be 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" (also cited by McEvoy.  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.

Categorising 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, if  you ever found one) 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 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,  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.

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 defeasible 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 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.

Let us now review some of the relevant literature.

Adrian Keane, Modern  Law Of Evidence, New York: Oxford University Press.  Ch. x 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 this post. Keane argues that S. 115(3) by defining ‘matter stated’ has  modified the law  significantly.

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

I. Dennis, "The Law Of Evidence", London: Sweet and  Maxwell; ch. xiv  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. 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 this blog entry.

--- "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, Spencer proceeds to examine the  justification for the exclusionary
rules. 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.

S. 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, Wallace 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. Ormerod, "Hearsay: A Case  Comment", Criminal Law Review. 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, "Cambridge Law Review",  The case  of Al-Khawaja and  Tahery v. United Kingdom, (2009) 49 E.H.R.R. 1,  decided by the European Court of  Human Rights is analysed in this essay. 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.

Editorial, "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.

M. Requa,  "Absent Witnesses And The UK Supreme Court:  Judicial Deference As Judicial  Dialogue", "International Journal Of  Evidence And Proof".  Requa 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", "The 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).

D. Ormerod,  "Evidence: Hearsay – Admissibility Of Mobile  Phone Text Messages: A Case Comment", The Criminal Law Review, vol. 12. 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.

S. Uglow, "Section 115(3) Of The  Criminal Justice Act, 2003: "How Not To Overturn Kearley"", "Archbold  News", vol. 5. It is to be noted that the essay was written 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  essay 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.

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

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

Finally, A SUMMARY OF THE RELEVANT CASES -- alphabetically  ordered, rather than  chronological, as the order should be to display how  conceptual  analysis by the layman-cum-ordinary-language-philosopher informs the   progress in English common law.

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.

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.

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.

R V.  Kearley, (1992) 2 AC 228 (discussed in terms of  'implicature', rightly, rather than the fuzzy 'implied assertion'). 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.

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. 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.

R V. Sukadeve Singh, (2006) EWCA 660. Cited by McEvoy  and interpretable as providing a new conceptual analysis of 'hearsay'  to solve the problem posed by  Kearsley. 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.

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.

Wright V. Toe Tatham,  (1837) 7 Ad. and 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.