In R v Riat the Court of Appeal provided valuable guidance concerning the approach that the domestic courts should adopt when hearsay evidence is tendered in criminal proceedings.
Their Lordships (at ) considered the significance for the domestic courts of the decisions of the Supreme Court in R v Horncastle and the Grand Chamber of the European Court of Human Rights in Al-Khawaja and Tahery v the UK. These cases concerned the nature of the circumstances in which the admission of hearsay evidence in criminal proceedings is compatible with the accused’s art 6 right to a fair trial. With reference to the previous decision of the Court of Appeal in R v Ibrahim, their Lordships in Riat indicated that:
- domestic law is as stated in the Criminal Justice Act 2003;
- to the extent to which the judgments in Horncastle and Al-Khawaja differ, the domestic courts must follow Horncastle;
- the differences between the two judgments may well be differences of form rather than differences of substance and that, whilst the importance of the hearsay evidence is a “vital consideration”, neither the European nor the domestic jurisprudence requires the domestic courts to regard hearsay evidence as automatically inadmissible because it is the “sole or decisive” evidence against the accused;
- the domestic courts will not normally need to closely analyse the relationship between the domestic and European jurisprudence, as reference to the 2003 Act and the decision of the Supreme Court in Horncastle will normally be sufficient; but
- neither the 2003 Act nor the decision of the Supreme Court in Horncastle entitle the domestic courts to treat hearsay as automatically admissible.
Their Lordships (at [3-29]) then identified six “principal questions” or “steps” that arise in the context of the “statutory framework” that the 2003 Act created.
The First Question
The first question or step is: “Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (ss 116–118)?” Their Lordships indicated that hearsay evidence is only admissible if its admission is justified under a statutory exception to the hearsay rule. They did not regard the gateways created by s 117 (“business and other documents”) or s 118 (“preservation of certain common law categories of admissibility”) as problematic. They believed that the “more controversial cases” would tend to fall either under s 116 (“cases where a witness is unavailable”) or s 114(1)(d) (which conferred upon the criminal courts the power to admit hearsay evidence where satisfied that its admission is in the interests of justice).
The Second Question
The second question is: “What material is there which can help to test or assess the hearsay (s 124)?” Where the admission of hearsay evidence is justified under a hearsay exception, their Lordships suggested that the court should consider both “the apparent reliability of the evidence” and “the practicability of the jury testing and assessing its reliability”. Their Lordships recognised the critical role of s 124 of the 2003 Act (under which the credibility of the maker of a hearsay statement may be challenged in the witness’ absence).
The Third Question
The third question is: “Is there a specific ‘interests of justice’ test at the admissibility stage?” Their Lordships referred to the s 116(4) interests of justice test.
The Fourth Question
The fourth question is: “If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s 114(1)(d))?” Their Lordships recognised both that, when deciding whether to admit hearsay evidence under s 114(1)(d), the court must consider the matters specified by s 114(2) and that (as a number of earlier decisions had already made clear) hearsay must not routinely be admitted under s 114(1)(d) as this would subvert the statutory conditions imposed by ss 116 to 118.
The Fifth Question
The fifth question is: “Even if prima facie admissible, ought the evidence to be ruled inadmissible (s 78 of PACE and/or s 126 of CJA)?” So far as the court’s power under s 78 of PACE to exclude evidence tendered by the prosecution the admission of which would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted is concerned, the court recognised both that s 78 applies to hearsay evidence tendered by the prosecution even though the “gateway” via which hearsay evidence is admissible “does not contain a specific ‘interests of justice’ test”, and that the considerations specified by s 114(2) are also helpful when the court is considering the admissibility of hearsay under s 78.
The Final Question
The final question is: “If the evidence is admitted, then should the case subsequently be stopped under s 125?” So far as the court’s power to stop the case under s 125 of the 2003 Act (which only applies in the context of trial on indictment) is concerned, the Court of Appeal, recognising that this power forms a “critical part” of the 2003 Act’s statutory framework, distinguished it from the power of the court to stop the case on a defence submission of no case to answer. Their Lordships indicated that (unlike a submission of no case to answer) under s 125 the judge (being required to consider whether the evidence is “so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe”) must assess the reliability of the hearsay, which involves considering the “strengths and weaknesses” of the evidence, “the tools available to the jury for testing it” and “its importance to the case as a whole”. Their Lordships made clear that s 125 may come into play at any time after the close of the prosecution case, that the judge and counsel must keep it under review throughout the trial and that, since s 125 requires “an overall appraisal of the case”, it will often be best to deal with s 125 after all the evidence has been given.