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,
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
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
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
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.
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
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
forward your message to the intended addressee as it happens."
(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
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
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
evidence. What is not immaterial is the consistency of
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
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.
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
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!" --
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
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
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.
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
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
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
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
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
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
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.
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
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.
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  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 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
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
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.
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.
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
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
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
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
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.
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
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
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.
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
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
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.
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?
2. Whether the reliability
can be tested? The Supreme Court held that the
with respect to sole/decisive rule were in cases where either or both
of the tests were not satisfied, therefore, the decision in Horncastle
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
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
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,
Let us now review some of the relevant literature.
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.
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
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. 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
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
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
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
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
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
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.
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
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.
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.