Criminal law: Use of hearsay evidence; Professional conduct

by Fighting for Justice

Thursday 11 February 2010 by Anthony Edwards

The Supreme Court in R v Horncastle [2009] UKSC14 has upheld the decision of the Court of Appeal that, in appropriate circumstances, the Crown may rely wholly or mainly on hearsay evidence to establish its case. The Court of Appeal had, however, emphasised the need to check the reliability of the hearsay evidence in such situations.

It held that the evidence must be demonstrably reliable and its reliability must be properly assessed and tested, and while the provisions for unavailable witnesses in section 116 of the Criminal Justice Act 2003 allow for the use of hearsay evidence where a witness is in fear and that fear is to be broadly construed, it is unlikely that fear based on inappropriate assurances by the police will result in the evidence being admitted.

In R v T (D) [2009] EWCA Crim 1213 the court confirmed that hearsay should not be lightly admitted and could not be allowed in the absence of formal evidence to establish the statutory grounds. In R v Sadiq & Hussain [2009] EWCA Crim 712 the court considered the interests of justice test in section 114(1)(d) of the Criminal Justice Act 2003. It confirmed that the interests of justice included not only the public interest in crimes being tried but the interests of the accused. It would not normally be in the interests of justice for a witness’s hearsay evidence to be admitted where he simply refuses, without good reason, to testify when he is available and capable of giving evidence. The particular case had exceptional circumstances.

R. v. Thakrar and another [2010] EWCA Crim 1505 

Written by Criminal Law and Justice Weekly – Saturday, 21 August 2010


Admissibility of Multiple Hearsay

In R. v. Thakrar and another [2010] EWCA Crim 1505, judgment delivered July 5, K, M and T were shot dead at their home and two women, C and E, who were present in the house, were stabbed and seriously injured. Surviving witnesses reported that the attack was carried out by two men. On August 29, the first defendant took a flight to Northern Cyprus. On September 2, the second defendant was arrested prior to boarding a flight to the same destination. The Hertfordshire police contacted the police in Northern Cyprus, seeking their assistance in connection with the first defendant. He was arrested and returned to the United Kingdom. The CPS then sent a letter to the Northern Cypriot police requesting their assistance in obtaining information, statements and documents in relation to the investigation of the murders. The Cypriot police took statements including an account of a conversation with the first defendant in an
Internet café in which he boasted of having committed the murders, and that he had done so with another which the prosecution inferred was the second defendant. The first defendant’s case at trial was coincidental presence in the home when the murders took place. He said the killers had then ordered him to kill E, and that he had stabbed her a number of times, but without the intention to kill. The second defendant’s defence was an alibi. The Northern Cypriot witnesses were unwilling to testify. The prosecution applied to adduce in evidence the written statements that had been taken by the Northern Cypriot police. It was accepted by the prosecution that the evidence of the first defendant’s confessions that they sought to adduce was multiple hearsay. It was admissible only if the requirements of s.121(1)(c) of the Criminal Justice Act 2003 were met. The Judge concluded that although there may have been difficulties about reliability, the value of the evidence was so high that the interests of justice required the admissibility of all the statements of the Cypriot witnesses. The defendants were convicted of murder and attempted murder. The defendants appealed against conviction.

The Court of Appeal (Stanley Burnton LJ, Roderick Evans J and Judge Pert QC) dismissed the appeal. The Judge dealt with the admission of the statements impeccably. They were admissible under s.121, their value was considerable and there was every reason to consider them to be reliable. What was striking about the statements was that they contained facts, consistent with unchallenged evidence, which could only have been known to an eyewitness. It was impossible to see what motive the makers of the statements could have had for inventing the first defendant’s confessions, and difficult to see what motive North Cypriot police could have had for concocting confessions, even if they had the information to be able to do so.

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