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Hearsay Evidence

Document Cited authorities 11 Cited in Related
AuthorLaura McGowan
DOI10.1350/jcla.2006.70.5.401
Published date01 October 2006
Date01 October 2006
However, while the Court of Appeal acknowledged that the relation-
ship between ss 114 and 115 is ‘deeply obscure’ (at [14]), it took the
view that s. 114, read in conjunction with s. 118, effected an abolition of
the common law rules on hearsay, save insofar as certain common law
rules were expressly preserved by s. 118 itself. Thus, the effect of the
unintentional implied assertion falling outside the statutory hearsay
regime was not that it was inadmissible common law hearsay, but that it
was admissible, because the statutory regime was exhaustive, and did
not cover it.
Ben Fitzpatrick
Hearsay Evidence
R vAl-Khawaja [2005] EWCA Crim 2697, [2006] 1 WLR 1078
The defendant was a consultant physician in rehabilitative medicine and
was charged with separate counts of indecent assault on two female
patients whom he had treated. One of the complainants, who was the
only witness whose evidence went directly to the commission of the
assault against her by the defendant, died before the case came to trial.
At a pre-trial hearing the judge gave leave for her witness statement to
be given in evidence pursuant to ss 23 and 26 of the Criminal Justice Act
1988. The defendant was convicted on both counts and sentenced to 15
months’ imprisonment on the first count and 12 months’ imprisonment
on the second count, to be served consecutively.
The defendant appealed on the grounds that the admission of a state-
ment of one of the complainants breached his right to a fair trial under
Article 6 of the European Convention on Human Rights, in particular his
right under Article 6(3)(d) to examine witnesses against him.
H
ELD
,
DISMISSING THE APPEAL
,where a witness who was the sole
witness of a crime had made a statement to be used in the prosecution
and had since died, the appellant’s right to a fair trial under Article 6 of
the European Convention on Human Rights would not necessarily be
infringed by the admission of that statement at trial.
The provision in Article 6(3)(d) that a person charged should be able
to have witnesses against him examined was only one aspect of a fair
trial. Where there was no opportunity to examine such a witness the
question was whether the proceedings as a whole, including the way the
evidence was taken, were fair. In this case the appellants had an oppor-
tunity to attack the accuracy of the complainant’s statement by explor-
ing inconsistencies between it and recent complaints made by her; and
through expert evidence. Furthermore, as the trial judge had adequately
directed the jury as to the difficulties for the defendant in challenging
the statement the proceedings as a whole had not been unfair. Overall
the evidence against the appellant was very strong, and the verdicts
were not unsafe.
Hearsay Evidence
401

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