The next chapter in the hearsay debate
The recent Court of Appeal decision in R v Riat  EWCA Crim 1509 adds to the ever-expanding case law on the admissability of hearsay evidence. Mark George QC and pupil Marian Cleghorn of GCN were interviewed for Lexis Nexis Current Awareness (published 14.8.12) and predict that despite some clarification, the issues surrounding hearsay will keep the courts busy for the foreseeable future.
R v Riat  EWCA Crim 1509
Extracts from the article as follows:
"...the judgment made clear that courts need look no further than Horncastle and the hearsay provisions themselves in determining hearsay applications and reiterated there were no absolute rules concerning the admissibility of hearsay evidence. Secondly, the judgment set out six steps which any judge must go through in determining an application. The court made clear that even where hearsay evidence was the sole or decisive evidence in the case, it was still potentially admissible and there was no requirement for such evidence to be demonstrably reliable. Nonetheless, judges had to make careful assessments about the extent of the risk that the hearsay evidence was unreliable and the extent to which its reliability could safely be tested and assessed. The court also points out the ambit of Criminal Justice Act 2003, s 126 which may need further consideration when it arises."
"The judgment affirms the default rule that hearsay is not admissible and that its admissibility must be justified under one or other of the statutory exceptions. Full enquiries will need to be made as to the witness's credibility and all relevant material disclosed. The court also noted hearsay applications should not be made as a matter of routine or simply ânodded throughâ."
"The use of hearsay evidence remains controversial. As the judgment recognises, hearsay evidence is ânecessarily second-hand and for that reason very often second-bestâ. This authority narrows the scope for challenges down to whether it is reasonable in the circumstances of a particular case for a judge to find it is safe to admit hearsay evidence. That still leaves some considerable scope for argument, in particular as to how judges apply the various safety measures contained within the provisions and distilled by the judgment into the six-step approach referred to above. Hearsay will keep the courts busy for the foreseeable future."
Mark George QC is a highly experienced defence trial advocate of more than 35 years call. He is regularly instructed in cases of murder, manslaughter, rape and other serious sexual cases. Marian Cleghorn is a pupil at Garden Court North. She previously worked at the International Criminal Court in the Hague within the Office of the Prosecutor, as an Erasmus scholar, and later as a Direct Assistant to the Prosecutor.
> The full article can be found under Current Awareness on the Lexis Nexis network (subscription only) ref: LNB News 14/08/2012 57 "The next chapter in the hearsay debate". Click here to sign in if you have an account.