Solicitors' Higher Rights of Audience Qualification Evidence in the Higher Courts Syllabus

State the 'rule against hearsay'.

An out-of-court statement is not admissible to prove the truth of its contents unless it falls within a recognised exception. The rationale is the inability to test the absent maker's reliability by cross-examination, plus risks of fabrication and error.

When is an out-of-court statement NOT hearsay (i.e. admissible as original evidence)?

When it is adduced not to prove the truth of its contents but for another purpose — e.g. to show the statement was made, its effect on the hearer, the maker's state of mind, or that it was a lie. The truth of the matter stated is not in issue.

List the four main 'gateways' for admitting hearsay in criminal proceedings under s.114(1) CJA 2003.

(a) A statutory provision makes it admissible (e.g. ss.116, 117, 119, 120); (b) a preserved common law exception applies (s.118); (c) all parties agree to its admission; or (d) the court is satisfied it is in the interests of justice to admit it (the 'safety valve').

Under s.116 CJA 2003, on what grounds may a statement of an unavailable witness be admitted?

The maker is identified and would have been competent, and is unavailable because they: (a) are dead; (b) are unfit through bodily or mental condition; (c) are outside the UK and attendance is not reasonably practicable; (d) cannot be found despite reasonable steps; or (e) do not give evidence through fear (with leave).

What does s.117 CJA 2003 admit, and what conditions apply?

Business and other documents created or received in the course of a trade, business, profession or office. The information must have been supplied by a person with personal knowledge and passed through people acting in the course of business. Extra conditions apply where the document was prepared for criminal proceedings/investigation.

Name three preserved common law hearsay exceptions under s.118 CJA 2003.

Examples: public information/published works; evidence of reputation (e.g. as to character); res gestae statements; confessions; statements in furtherance of a common enterprise; and expert evidence's reliance on a body of expertise. (Res gestae and confessions are the most commonly examined.)

What is 'res gestae' and when is such a statement admissible as a hearsay exception?

A statement so closely connected to an event that the possibility of concoction or distortion can be disregarded. It is admissible where: (a) the statement was made under such pressure/emotion that fabrication is unlikely; (b) it accompanied an act; or (c) it relates to the maker's contemporaneous physical/mental state (R v Andrews).

State the test for admitting hearsay under the 'interests of justice' safety valve (s.114(1)(d) / s.114(2) CJA 2003).

The court must consider factors in s.114(2): probative value, other available evidence, importance of the matter, circumstances/reliability of the statement and its maker, whether oral evidence can be given, difficulty in challenging it, and prejudice to the opposing party.

How is hearsay made admissible in civil proceedings?

Under the Civil Evidence Act 1995, hearsay is generally admissible in civil proceedings — s.1 abolishes the rule against hearsay. It is admitted subject to notice requirements (s.2) and the court assesses its weight under s.4.

List factors the court weighs when assessing the weight of hearsay in civil proceedings (s.4 CEA 1995).

Whether it would have been reasonable to call the maker; whether the statement was made contemporaneously; whether it involves multiple hearsay; whether anyone had a motive to conceal or misrepresent; whether the original was an edited/collaborative account; and whether the circumstances suggest an attempt to prevent proper evaluation of its weight.

What is the notice procedure for hearsay in civil proceedings?

Under s.2 CEA 1995 and CPR 33, a party intending to rely on hearsay must, if requested, give notice and particulars to enable the other party to deal with it. Failure to give notice does not render the evidence inadmissible but may affect weight and costs.

Define 'bad character' for the purposes of the CJA 2003.

Section 98: evidence of, or of a disposition towards, misconduct on the defendant's part, other than evidence which has to do with the alleged facts of the offence charged or is connected with its investigation/prosecution. 'Misconduct' (s.112) means the commission of an offence or other reprehensible behaviour.

List the seven 'gateways' for admitting evidence of a defendant's bad character (s.101(1) CJA 2003).

(a) All parties agree; (b) the defendant adduces it himself; (c) it is important explanatory evidence; (d) it is relevant to an important matter in issue between defendant and prosecution; (e) it has substantial probative value in a matter in issue between co-defendants; (f) it corrects a false impression given by the defendant; (g) the defendant has made an attack on another person's character.

Under gateway (d) (s.101(1)(d) CJA 2003), what important matters in issue commonly justify admitting bad character?

Evidence relevant to whether the defendant has a propensity to commit offences of the kind charged, or a propensity to be untruthful (s.103). Propensity may be shown by previous convictions for the same description or category of offence.

What discretion exists to exclude bad character evidence admitted under gateways (d) or (g)?

Under s.101(3) CJA 2003 the court must NOT admit the evidence if, on application, it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. This duty applies to gateways (d) and (g); s.78 PACE and s.103/s.101(4) considerations also apply.

What is the effect of good character evidence, and what directions may a defendant of good character receive?

A defendant of good character may receive the two-limb Vye/Hunter direction: (1) the credibility limb — good character supports the defendant's credibility/truthfulness; and (2) the propensity limb — good character makes it less likely the defendant committed the offence.

Who qualifies as a person of 'good character' for the purposes of a good character direction?

Traditionally a defendant with no previous convictions or cautions ('absolute' good character). Following R v Hunter, the direction is a matter of the judge's discretion; a defendant with old/minor or irrelevant convictions may receive a modified ('effective' good character) direction.

How is the bad character of a NON-defendant (e.g. a witness) admitted (s.100 CJA 2003)?

Only if: (a) it is important explanatory evidence; (b) it has substantial probative value in relation to a matter in issue of substantial importance in the case; or (c) all parties agree. Leave of the court is required for (a) and (b).

Why is the test for admitting a non-defendant's bad character (s.100) stricter than for a defendant's?

To protect witnesses and complainants from gratuitous attacks. It requires court leave and a higher threshold ('substantial probative value' in a matter of 'substantial importance'), whereas a defendant's bad character has seven broader gateways. This prevents fishing expeditions into witnesses' pasts.

Define a 'confession' under s.82(1) PACE 1984.

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. It includes mixed statements containing both incriminating and exculpatory parts.

On what two grounds may a confession be excluded under s.76 PACE 1984?

Where the prosecution cannot prove beyond reasonable doubt that the confession was not obtained: (a) by oppression of the person who made it; or (b) in consequence of anything said or done likely to render unreliable any confession the accused might make. If raised, the burden is on the prosecution.

How is 'oppression' defined for s.76(2)(a) PACE 1984?

Under s.76(8) it includes torture, inhuman or degrading treatment, and the use or threat of violence. Case law (R v Fulling) adds the exercise of authority in a burdensome, harsh or wrongful manner; oppression almost always imports some impropriety by the interrogator.

Compare s.76 and s.78 PACE as routes to excluding a confession.

Section 76 is a mandatory rule: if oppression or unreliability is raised, the confession must be excluded unless the prosecution proves the contrary beyond reasonable doubt. Section 78 is a discretionary fairness test focusing on the adverse effect of admission on the fairness of proceedings (often used for breaches of PACE Codes).

What direction must a judge give when identification evidence is disputed (the Turnbull guidelines)?

R v Turnbull: the judge must warn the jury of the special need for caution before convicting on identification evidence, explain why mistakes can occur (an honest witness can be convincing yet wrong), and direct them to examine the circumstances of the identification.

What does the mnemonic ADVOKATE represent in identification evidence?

Factors affecting the quality of an eyewitness identification: Amount of time under observation; Distance; Visibility; Obstruction; Known or seen before; Any reason to remember; Time lapse since the sighting; Errors or material discrepancies (between first description and the defendant).

When can a judge withdraw an identification case from the jury under Turnbull?

Where the quality of the identification evidence is poor (e.g. a fleeting glance in difficult conditions) AND there is no other evidence to support its correctness, the judge should withdraw the case and direct an acquittal.

Distinguish legal professional privilege from public interest immunity.

Legal professional privilege is a right of the client to withhold confidential lawyer-client communications; it is absolute and belongs to the client. Public interest immunity (PII) is a court-balanced exclusion of relevant material whose disclosure would harm the public interest (e.g. national security, informants); the court weighs disclosure against the public interest in withholding it.

What are the two limbs of legal professional privilege?

(1) Legal advice privilege — confidential communications between lawyer and client for the purpose of giving or receiving legal advice; and (2) Litigation privilege — confidential communications between lawyer/client and third parties where the dominant purpose is actual or contemplated litigation.

What is the privilege against self-incrimination?

The common law right (the 'right to silence') that a person need not answer questions or produce documents that would tend to expose them to a criminal charge or penalty. In criminal trials, however, adverse inferences may be drawn from silence under ss.34–38 Criminal Justice and Public Order Act 1994.

Does the 'iniquity' or crime-fraud exception defeat legal professional privilege?

Yes. Communications made for the purpose of furthering a crime or fraud are not protected by legal professional privilege (the crime-fraud / iniquity exception). The privilege never attaches where the lawyer's advice is sought to facilitate a criminal or fraudulent purpose.