Confession Evidence
The Police and Criminal Evidence Act 1984, s.76, provides that a disputed confession cannot be used in evidence against an accused person unless the prosecution proves beyond reasonable doubt that it was not obtained:
“by oppression of the person who made it; or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof”.
For the purposes of this section, a confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise. 1 The issue of whether a statement has been obtained by oppression or in circumstances which make it unreliable is always a question of fact in all the circumstances.
If a defendant wishes to challenge the admissibility of a confession the court will usually decide the issue by holding a mini-trial (known as a `voir dire’) where both sides can call evidence to support their argument on admissibility.
Section 76 Police and Criminal Evidence Act 1984 provides:
(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
Hearsay
“Hearsay” means a “statement not made in oral evidence that is evidence of any matter stated.” (Section 114(1) CJA 2003). This breaks down into two parts. Firstly, it must be a ‘statement not made in evidence’. In other words, it must be something said by a person who is not a witness in the proceedings.
Secondly, it must be being adduced as ‘evidence of any matter stated’. It must be being adduced to prove what is being said within the statement.
Section 114 (1) (3) states that ‘A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been:
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.
114 Admissibility of hearsay evidence
- In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
- any provision of this Chapter or any other statutory provision makes it admissible,
This subsection provides that where a ‘statutory provision’ makes hearsay admissible, then it can be. Therefore we have to consider the statutory provisions of this Act and other pieces of legislation which are capable of rendering hearsay admissible. are:
s116 CJA 2003– where a witness is unavailable;
s117 CJA 2003– where the material to be adduced is a business or other document;
s119 CJA 2003– where the hearsay is a previous inconsistent statement by a witness;
s120 CJA 2003– where the hearsay is a previous consistent statement by a witness;
CJA 1967 s9 – statements from a witness which are not in dispute
CJA 1967 s10 – formal admissions.
Section 116 – witness absence
Section 116 is the gateway which deals with witness absence. If a particular witness is unavailable to give evidence then the Crown may apply under this section to have their evidence adduced as hearsay. The relevant provisions are as follows:
In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.
So, the Crown would first have to satisfy the Court that the evidence they are seeking to adduce would be admissible if it were to be given as oral evidence. This normally means that the hearsay evidence must give a first-hand account of what it is claiming – otherwise the statement itself would not be admissible, even if the witness were present to give the evidence. The Court must then be satisfied that the witness has been identified to the Court’s satisfaction.
The Court must then be satisfied that one of the five conditions under subsection 2 are satisfied. There is, of course, the overriding question as to whether it is in the interests of justice to admit the material. Also, even if the material is admitted, the defence could in theory apply to have it excluded under section 78 of the Police and Criminal Evidence Act.
Section 117 – Business documents
Section 117 allows the Crown to adduce documents which produce information which may not arise from the direct experience of the witness producing a document. For example, a telephone service provider does not have any personal knowledge of who made a phone call and at what time. But they may be able to produce phone records which prove that calls took place. Section 117 allows business documents to be adduced as evidence if particular conditions are satisfied. The section states:
(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings would be admissible as evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.
(2) The requirements of this subsection are satisfied if—
(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.
This means that the person producing the business document must have received the document in the course of a trade, business, profession or other occupation or as the holder of a paid or unpaid office. They must have personal knowledge of the matters dealt with – ie the document cannot be produced by someone who has no knowledge of how the document came to be prepared.
Res Gestae
Res Gestae is one of the common law routes through which hearsay can be adduced. This route is maintained by section 118 of the Criminal Justice Act. Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”. In today’s context, it is commonly used in domestic violence cases where a complainant failed to attend Court. In these circumstances, it may be that the complainant made a call to 999 and explained what happened to them down the phone. The principle of Res Gestae could allow the 999 call to be adduced as evidence of what took place, even where the complainant is not present to be cross examined.
The principle of Res Gestae has evolved across common law. Some important principles regarding its admission can be summarised as follows:
- Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
- The court will need to look at the particular circumstances in which the relevant statement has been made;
- It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness. Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection;
- The statement must be closely associated with the relevant event. The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
- Does the case have particularly features which relate directly to the possibility of concoction or distortion. This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.