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Friday, December 4, 2015

Implied Assertion: Grice v Grice


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

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.

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?
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.


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


Al-Khawaja and Tahery v. United  Kingdom (2009) 49 E.H.R.R. 1. This case  decided by the European court  of human rights 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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