Athwal and All That: Previous Statements, Narrative, and the Taxonomy of Hearsay
| Published date | 01 October 2010 |
| Date | 01 October 2010 |
| DOI | http://doi.org/10.1350/jcla.2010.74.5.657 |
| Subject Matter | Article |
Athwal and All That: Previous
Statements, Narrative, and the
Taxonomy of Hearsay
Roderick Munday*
Abstract Along with other forms of narrative evidence, s. 120 of the
Criminal Justice Act 2003 rendered parties’ previous statements admitted
to rebut suggestions of fabrication admissible evidence of any matter
stated. In R v Athwal the Court of Appeal sought to situate this variety of
evidence within the Act’s general hearsay regime. This article questions
whether s. 114 of the 2003 Act did successfully integrate such statements
into other exceptions to the hearsay rule, explores the scope of this little-
studied exception to the rule against narrative, and offers some thoughts
both on the taxonomy of hearsay in general and on how courts might deal
with an apparent drafting defect in s. 114.
Keywords Criminal evidence; Narrative; Hearsay; Previous state-
ments admitted to rebut allegations of fabrication
The first step in wisdom is to know the things themselves; this notion
consists in having a true idea of the objects; objects are distinguished and
known by classifying them methodically and giving them appropriate
names. Therefore, classification and name-giving will be the foundation
of our science.
Carolus Linnaeus, Systema Naturae (1735), trans. M. S. J. Engel-Ledeboer
and H. Engel (1964) 19
The status of parties’ previous statements prior to the
Criminal Justice Act 2003
Prior to the entry into force of Part 11 of the Criminal Justice Act 2003
(CJA 2003), whenever it was allowable to show that a witness in a
criminal case had made a previous inconsistent statement, unless
adopted by the witness that statement could not be employed as evid-
ence of the facts; the previous statement was only admitted as evidence
of the fact that the statement had been made and to assist the tribunal in
assessing the witness’s credibility. So, if a witness was declared hostile
and his own counsel introduced his previous inconsistent statement in
evidence under s. 3 of the Criminal Procedure Act 1865 (CPA 1865), or
if an opposing witness’s earlier oral or written inconsistent statement
was proved in conformity with s. 4 or 5 of the CPA 1865, the contents
could not be treated as evidence of the truth of the facts.
At trials in the Crown Court, the restricted purpose to which such
evidence might be put had to be spelt out to jurors; magistrates, too, had
* Fellow of Peterhouse, Cambridge.
415The Journal of Criminal Law (2010) 74 JCL 415–433
doi:10.1350/jcla.2010.74.5.657
to direct themselves on this ‘subtle distinction’.1If a witness testified that
the mugger had been wearing a charcoal hoodie, but was shown on an
earlier occasion to have stated that he had been sporting a natty green
beret, even after the tribunal of fact had heard the contents of the
previous statement, it had to be solemnly instructed that that was no
evidence that the mugger’s attire was green, or natty; it was exclusively
evidence that the speaker had given an earlier inconsistent version of
events and, for that reason, might be unworthy of belief when she now
maintained in court that her mugger was tricked out in a charcoal
hoodie.
In similar guise, under pre-CJA 2003 law, if a witness’s earlier state-
ment was admitted to rebut a suggestion of what is conventionally
termed ‘recent concoction’, or if evidence of the recent complaint of a
sexual complainant was admitted, once again such statements were not
admissible as evidence of their contents. Their function was confined to
rebutting the charge of recent concoction, or in the case of recent
complaints to evidencing the complainant’s consistency.
The fact that such statements were not admitted as evidence of the
truth of their contents meant that they infringed neither the old rule
against hearsay nor, in some cases, its cousin àla mode de Bretagne, the
rule against narrative. The perplexing character of the jury instruction,2
however, was all too apparent, and the Law Commission was not slow to
point out what everybody already accepted: namely, that the restrictions
made little sense, particularly when the makers of such statements were
present in court, available to explain or comment upon any discrep-
ancies between their contradictory versions of events.3
The Criminal Justice Act 2003 renders previous
statements admissible ‘as evidence of any matter stated’
As regards inconsistent statements, s. 119(1) of the CJA 2003 put paid to
these intellectual contortions, providing that whenever such a state-
ment becomes evidence in the case either because the maker admits to
having made it or because it is admitted via ss 3, 4 or 5 of the CPA
1865:
the statement is admissible as evidence of any matter stated of which oral
evidence by him would be admissible.
The selfsame rule also applies under s. 124(2)(c) if an inconsistent
statement has been made by a party whose statement, not made in oral
evidence in the proceedings, has been admitted as evidence of a matter
stated.4
Section 120, too, makes identical provision for statements rebutting
suggestions of concoction,5and for documents that have been received
1 Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics, Law
Com. Report No. 245 (1997) para. 10.17.
2 Ibid. at para. 10.39.
3 For example, ibid. at para. 10.96.
4 CJA 2003, s. 119(2).
5 CJA 2003, s. 120(2).
The Journal of Criminal Law
416
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