Crim. Evidence Hearsay

The Criminal Justice (Evidence) (Northern Ireland) Order 2004 revises the hearsay evidence rules in criminal proceedings. In criminal proceedings, a statement not made in oral evidence at the proceedings is admissible as evidence in certain circumstances. They are as follows:

• It is admissible by rules of law preserved by the legislation.
• It is specifically admissible under one of the above provisions.
• The parties to the proceedings agree that it is admitted, or the court is satisfied that it is in the interests of justice for it to be admissible.

In deciding whether hearsay should be admitted on the basis that it is in the interest of justice to do so, the court is to have regard to the following factors:

• The probative value, assuming it to be true, in relation to the matter in issue.
• How valuable it is to understanding other evidence.
• What other evidence has been or can be given on the matter.
• How important the matter or evidence is in the context of the case.
• Circumstances in which the statement was made.
• How reliable the maker of the statement appears to be.
• How reliable the evidence of the making of the statement appears to be.
• Whether oral evidence on the matter can be given and, if not, why not.
• The difficulty involved in challenging the statement.
• The extent to which that difficulty would be likely to prejudice the party facing it.

A statement in this context is a representation of fact or opinion made by a person by whatever means. It includes representations in a sketch, photofit, or pictorial form.

The legislation applies to matters only if the purpose or one of the purposes of the persons making the statement appears to the court to have been to cause another person to believe the matter or cause another person to act or a machine to operate on the basis that the matter is as stated.

In criminal proceedings, a statement not given in oral evidence, i.e., hearsay, is admissible as evidence of any matter stated if:

• Oral evidence given in the proceedings by the person who made the statement would be admissible.
• The person who made the statement is identified to the court’s satisfaction.
• Any of the five conditions mentioned apply.

The alternative conditions are as follows:

• The person is dead.
• The person is unfit to be a witness because of his bodily or mental condition.
• The person is outside the UK, and it is not reasonably practicable to secure his attendance.
• The person cannot be found although such steps as are reasonably practicable to find him have been taken.
• Through fear, the person does not or does not continue to give oral evidence in the proceedings, either at all or in connection with the subject matter, and the court gives leave for the statement to be given in evidence.

Fear is to be widely construed to include fear of the injury or death of another person or financial loss.

Leave may be granted for that last category if the court considers the statement ought to be admitted in the interests of justice, having regard to its contents, any risk that its admission or exclusion will lead to unfairness to any party to the proceedings, and, in particular, to how difficult it will be to challenge the statement if the relevant person does not give oral evidence, in appropriate cases, to other special provisions could be made before the witness under other legislation (e.g., tele-link), and other relevant circumstances.

Any of the above conditions that are, in fact, satisfied are to be treated as not satisfied if it is shown that the circumstances are caused by a person in whose case it is sought to give the statement or a person acting on his behalf to prevent the relevant person giving oral evidence in the proceedings, whether in connection with the subject matter of the statement or otherwise.

In criminal proceedings, statements contained in documents are admissible as evidence of the matter stated if oral evidence would be admitted, the below requirements are complied with, and where applicable, below mentioned further requirements are complied with.

The requirements are satisfied if the document or a 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, the person who supplied the information contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and each person through whom the information was supplied from the relevant person to the person mentioned above received the information in the course of a trade, business, profession, or other occupation or as the holder of a paid or unpaid office.

The additional requirements below must be satisfied: if the statement was prepared for the purpose of pending or contemplated criminal proceedings or investigations but was not obtained pursuant to an international cooperation request or certain statutory proceedings regarding the procurement of overseas evidence.

Any of the five conditions mentioned above (dead, unfit, etc.) is satisfied or the relevant person cannot be reasonably expected to have any recollection of the matters dealt with in the statement, having regard to the length of time since he supplied the information and other circumstances.

A statement is not admissible under this provision dealing with business records if a court makes a direction as follows: A court may make a direction if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of its contents, source of the information, the way in which or the circumstances in which the information was supplied or received, or the way in which or the circumstances in which the document concerned was created or received.

Common law rules on hearsay evidence are preserved, including the following:

• Public information.
• Published matters of a public nature, such as histories, scientific works, dictionaries, and maps as evidence of facts of a public nature.
• Public documents such as registries and returns made under public authority as evidence of facts therein.
• Records such as the records of courts, treaties, pardons, commissions as evidence of facts therein.
• Evidence relating to age as given by a person without personal knowledge of the matter.