An "implied assertion", as used by lawyers, is a statement -- an assertion, say -- (or conduct) that implies some fact. This may be confusing: it would seem that it is the ASSERTION that is implied. But that's legalese forya!
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 a so-called "implied assertion" is "admissible" (a modal concept if ever there was one) in court to prove the TRUTH of the content of the implied assertion. Sounds odd? Well, it's not that difficult, and it's legalese after all. Lawyers may not be too perspicuous but they are perspicuous enough: they need their 'clients' to understand them (whereas a philosopher of language does not really have a client).
Consider the question: "Have you got any charley?", where "charley" -- sic with small "c" -- is slang for cocaine -- rather than, say, a silent film featuring Charlie Chaplin. Grice would nicely 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, however, it can imply something, and if you assert what is implied, you get the legalese "implied assertion". "Snow is white" is an assertion (which I don't think has been used in court, though). So the idea is that something asserted is implied by some utterance.
While a so-called "implied assertion" IS considered "hearsay", it is generally considered more reliable than a REGULAR statement or assertion. Why? Well, because an implied assertion is alleged to be 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 Criminal 660, 2 Criminal App endix R 12, Rose LJ, gives the judgment of the court at paragraph 14.
Rose notes that when sections 114 and 118 of the Criminal Justice Act (2003) are read together the sections 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!). The afore-mentioned sections create, instead, a NEW rule AGAINST hearsay which does NOT extend to so-called 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 ("Have you got any 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. Furthermore, from this evidence an intention can be INFERRED on the part of the occupier of the premises to supply the afore-mentioned 'charley'.
Rose concludes that the view of the MAJORITY in Kearley, in relation to the analysis of the concept of "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 thus 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" (a modal concept if ever there was one) because it is no longer "hearsay". The conceptual analysis of 'hearsay' has changed, and implied assertion does not count as hearsay, 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 (or lack of it) -- and it evokes the concept of a so-called "implied assertion" (legalese if ever there was one). "Have you got any charley?" was a question, an utterance in a telephone conversation. But this question, it is alleged, carried an IMPLIED ASSERTION, or two: that charley was available and, perhaps, the Kearley was selling charley (since he's got it).
The appellant (Kearley a.k.a. Chippie) is charged with possession of drugs, and, worse, intent to supply. While the policemen arrest Kearley, one policeman stays behind to search Kearly's house. During this time, Kearley's telephone receives seventeen telephone calls requesting for supply of drugs ("Have you got any charley?"). None of the seventeen telephone callers were 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 (or psychological attitude) of each of the seventeen telephone callers or 'utterers' (to use Grice's parlance), not the state of mind of the accused. And the accused need to be protected, surely.
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 any more relevant: 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 very sanity of the testator as expressed by a third party's letter addressed to the testator is INadmissible because of hearsay (The letter read, "He is crazy."). Britons use 'hearsay' broadly: a letter does not say nor hear, but so there!
The majority of the court in the Kearsley case (with two important lords, Browne-Wilkinson and Griffiths, dissenting) finds that the telephone evidence is irrelevant. And the majority find the evidence is irrelevant, because it only shows or displays a belief (or psychological attitude as Grice prefers) manifested in the minds of the telephone callers that Kearsley would supply drugs.
The evidence says nothing about whether Kearsley actually supplies drugs. It is not an assertion, even an implied one, to the effect that Kearsley sells 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 "Have you got any charley?" does not ENTAIL that Kearsley 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 ("Have you got any 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 ("He is crazy.") 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 ("Pazzo"), it would show that the testator knew that foreign language -- this is different in that "He is crazy" is treated as evidence that he is crazy, not that the utterer knows English. 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 the case of 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 the Blastland case, 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 so-called 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 so-called 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?" is 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 may "invite" 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 (if that's their psychological attitude, to use Grice's parlance) 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 ("Have you got any charley?") is evidence only as to the state of mind (or psychological attitude, to use Grice's parlance) of the seventeen telephone callers, who wish to obtain drugs and think 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 -- a Popperian term, if ever there was one. 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 BELIEVE that the accused (or someone living in the same premise as the accused) is supplying drugs. Oliver notes, 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 New Zealand case of Davidson v. Quirke (1923) is cited to show that calls are relevant. Davidson v. Quirke (1923) s 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. ch. 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, Kearley 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 Kearley 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". 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 115 of the terms used in 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 114 and 115, further depends on the interpretation of 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 114 was possible and thus inadmissible. The court ruled that the deeply obscure relationship between 114 and 115 read with 118 clearly indicated the abolition of the common law exclusionary rule. Therefore, a statement falling out of 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 ch. 2 of the 2003 Act did not apply to the evidence adduced. It held that 118(1)(7) or 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 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, Oxford University Press. Ch. x lays down the background, rationale behind the rule and leads into the criminal justice act. The act itself is fully examined. The latter part of the essay deals with the concept of implied assertion It is argued that S.115(3) by defining ‘matter stated’ has modified the law significantly.
Cross and Tapper, On Evidence, United Kingdom: Lexis Nexis Butterworths. Ch.xiv analyses in detail the working of the hear-say rule in criminal proceedings. The fundamentals of the rule is thoroughly explained with illustrations.
I. Dennis, "The law of evidence", London: Sweet and Maxwell. Ch. xiv analyses the concept of hear-say both prior to 2003 and after 2003, thereby giving a comparative perspective.
J.R. Spencer, "Hear-say in criminal proceedings" (Oregon: Hart Publishing. Having worked on the consultation paper for the law commission, the author gives an insider’s view of the evolution of the 2003 criminal justice act and its implications. A specific chapter is devoted to an analysis of the issue of clash with Article 6 of the European court of human rights.
--- "Hearsay, relevance and implied assertions," The Cambridge Law Journal, vol. 52. After examining the arguments and the three-levelled -- hear-say, relevance, and scope for fabrication -- decision in Kearley, the essay proceeds to examine the justification for the exclusionary rules. It is argued 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. The present (as on 1993) rules of hearsay lead to unexpected results such as convicting the innocent and acquitting the guilty. The irony in the process is pointed out: out-of-court statements in the form of confessions are admissible, and an exception tohearsay,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, The essay throws light on the issue of the rights under Article 6(3)(d) in the context of the criminal justice act 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, it is suggested that the burden remains on the Strasbourg court to clarify its own position. It is argued against the sole and decisive evidence rule as it has several negative side effects.
D. Ormerod, "Hearsay: a case Comment", Criminal Law Review. An analysis is provided of the decision of the court of appeal in the case of R v. Sukadeve Singh, (2006) EWCA Crim 660. The debate is contextualised over the applicability of "the hearsay rule" to so-called "implied assertions" by giving instances of several circumstances which lead confusion. Comparing the decision in Singh to Kearley, it is held that the decision that the criminal justice act fully abolishes the common law hearsay rule and the decision in Kearley is sound because otherwise there then would have been multiple (seventeen) sources of hearsay, one from statue, one from outside etc. It is pointed out, however, that 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 criminal justice act.
J. R. Spencer, "Hearsay re-form, 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. The criminal justice act seems to contradict the obligations under the European court of human rights, the interpretation of the latter by the Strasbourg has been very wide thereby questioning the validity of the criminal justice act. In the United Kingdom, the interpretation of the article 6 is instrumental in the sense that its purpose is to prevent baseless convictions, etc. Safeguards are seen as adequate cushion against violation of article 6, which come to be rejected in the case of Al-Khawaja. It is argued 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 criminal justice act.
Editorial, "Hearsay Evidence And Article 6, 5", "Criminal Law Review", It is argued that admission of hearsay evidence on the basis of doing justice to the victim, or the inherent quality of the evidence can not 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 recognises certain special circumstances where the admission of hearsay even as sole evidence is 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 United Kingdom supreme court: judicial deference as judicial dialogue", "International Journal Of Evidence And Proof". The clash is examined between the hearsay rule, as codified in the criminal justice act) and the rights of the accused guaranteed under article 6 of European court of human rights. 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 criminal justice act and thus resorted to its own diluted interpretation of article 6. The Strasbourg on the other hand, has been emphasising 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 is just a tip of the iceberg in the clash between the European court of human rights 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 criminal justice act, in re-drawing the very concept of "hearsay" brings to the fore several problems. The most relevant ones are the "definitional" or conceptual-analytic issues, implications on implied assertions, narratives, etc. It is argued that S. 115(3) fails 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 (or 'utterer', to use Grice's parlance) of the statement and his purpose (or M-intention, to use Grice's parlance), who is unavailable to the court. Situations are envisaged 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 theyare 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. It is argued that the confusion would have been avoided had the criminal justice act made it clear in S. 114 itself rather than complicate with S.115(3).
D. Ormerod, "Evidence, hear-say, admissibility of mobile phone text messages: a case comment", The Criminal Law Review, vol. 12. The essay examines the case of R v. Bains, (2010) EWCA Crim 873, in light of the ruling in the case of Kearley, the changes by the criminal justice act and the decision in the case of 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 find to be admissible "in the interests of justice". It is observed that S.115(3) is a difficult provision to apply. It is argued that the difficulty in the criminal justice act isthat the courts earlier had to merelylookat the admissibility issue keeping in mind the dangers involved in accepting the evidence. Post criminal justice act, courts face the problem of fitting the evidence within the "definition", which involves the near impossible process of determining the purpose or intention of the statement-makers -- since as Grice says, all implicature is indeterminate. It is argued 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: how not to overturn Kearley", "Archbold News", vol. 5. 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 cites this essay in support of its contentions. It is argued that the criminal justice act does NOT only replace the common rule but re-states it. Therefore, there can be out-of-court "assertion" that is hearsay but not covered by the criminal justice act. In this context, the category of evidence that the case of Kearley found to be "hearsay" continues to remain so. This is because, though the intention was to over-rule 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. The essay provides a critical analysis of the hear-say provisions of the criminal act and calls it a timid response. It is argued that the discretion entrenched in the criminal act is not necessarily a bad thing. It is found that the provision in S.115 to be problematic, countering which would be possible under S. 114(1)(d). In light of S.78 of the police and criminal evidence act and the burden to prove
the lack of intention of the maker, the prosecution faces a huge difficulty, whereas the defence has the ability to make free play with purposes.
T. Worthen, "The hear-say provisions of the criminal justice act: so far, not so good?" "The Criminal Law Review". It is argued that excessive discretion has been conferred by virtue of S. 114(1)(d), which, though by itself is not a demerit of the criminal 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 criminal act. This practice results in frustration of the scheme of the criminal act wherein different technical procedures have been described for specific circumstances.
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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.
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Al-Khawaja and Tahery v. United Kingdom (2009) 49 E.H.R.R. 1. This case decided by the European court of human rights is concerned with a complainant of indecent assault, who was the sole witness as well. While the court of appeal holds that in convicting the accused there is no violation of article 6, the European court of human rights reverses thisdecision and holds that mandate of article 6 is not counter-balanced with adequate safeguards as alleged by the government. Though there may be special circumstances, the sole and decisive evidence rule applies strictly.
Luca v. Italy (2003) 36 E.H.R.R. 46. The case deals with drug trafficking. The European court of human rights holds 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 the European court of human rights.
R v. Horncastle (2009) UKSC 14. Three appeals are heard and dismissed by the supreme court in this case from the crown courts. In all the 3 cases, the witnesses are 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 contains 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 and decisive evidence rule did not apply to the U.K. The convictions are upheld.
R V. Kearley (1992) 2 AC 228 (discussed in terms of 'implicature', rightly, rather than the fuzzy 'implied assertion'). 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's statement is 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 [not implicit], 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. Leonard was charged with possession of drugs with intent to supply and the evidence raised by the prosecution are two texts received on his telephone 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 imply [or implicate] that Leonard is 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 are charged with murder and written statements are accepted of the witnesses, their absence being caused by intimidation by the accused himself. Here, the court of appeal holds that basing conviction on the available evidences is not in violation of article 6, as the accused deprived himself of the opportunity to have the witness on court.
R v. Sukadeve Singh (2006) EWCA 660. The case can be 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 is whether the evidence was affected by the "hearsay rule" as incorporated in the 2003 Act. The court observed that the relationship between 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 telephone calls here were thus 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 (or 'implicature') 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 or explicitly made in those letters, they still would have been hit by the "hearsay" rule.
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