The Evidence of ‘Unavailable’ Witnesses under the Criminal Justice Act 2003
| DOI | 10.1350/jcla.69.3.256.64787 |
| Date | 01 June 2005 |
| Published date | 01 June 2005 |
| Subject Matter | Article |
Witnesses under the Criminal
Justice Act 2003
Gregory Durston*
Abstract
Section 116 of the Criminal Justice Act 2003 extends the cir-
cumstances in which statements made by witnesses who are unavailable
to give evidence at court can be received. Such statements are no longer
limited to those made in writing, and now also encompass those that
constitute multiple hearsay. Additionally, for most first-hand hearsay
statements, there is no longer a general discretion to prevent adduction,
unlike the equivalent provision in s. 23 of the Criminal Justice Act 1988.
Although some safeguards have been put in place—such as a need to
identify the maker of such statements before they can be admitted—there
is uncertainty as to how these will operate and how effectively they will
prevent the fabrication of evidence as well as excessive delay in the trial
process.
This article considers the admissibility of evidence of potential witnesses
to criminal matters who are unavailable to testify personally at trial,
under the Criminal Justice Act 2003. (It will not consider the adduction
of business or other official records, which have their own provisions
under the 2003 Act.) At common law, witnesses normally had to give
oral evidence in court from first-hand knowledge. They could not repeat
what others had told them, nor could the evidence of absent witnesses
be given via written statements. This emphasis on orality was largely
premised on a faith in the value of cross-examination and the assess-
ment of witness demeanour as aides to determining truth. However,
there were several important exceptions to this aspect of the hearsay
rule, some at common law and others under statute (such as the
Criminal Justice Act 1988). Despite the latitude that these exceptions
provided, the hearsay rule was the subject of considerable ongoing
criticism, as was its provision for absent witnesses. It was the subject of
a Law Commission Report Evidence in Criminal Proceedings: Hearsay and
Related Topics in 1997,1 which included numerous recommendations for
reform (and a draft Bill to effect them). It was considered again, in 2001,
by Sir Robin Auld, as part of his Review of the Criminal Courts of England
and Wales,2 which was even more radical in its proposals.
When the relevant provisions of the Criminal Justice Act 2003 come
into force (expected commencement date April 2005), they will, inter
alia, introduce an entirely new regime for hearsay evidence in criminal
cases. According to the Home Office, this will codify and simplify the
* MA, Dip L, LLM, PhD, Barrister, Senior Lecturer, Kingston University Law School;
e-mail: G.Durston@kingston.ac.uk.
1 Law Com. Report No. 245, Evidence in Criminal Proceedings: Hearsay and Related Topics,
1997, available at www.lawcom.gov.uk/231.htm#lcr245, accessed 14 March 2005.
2 Available at www.criminal-courts-review.org.uk/, accessed 14 March 2005.
256
The Evidence of ‘Unavailable’ Witnesses
subject, and so provide greater certainty as to the circumstances in
which hearsay will be admitted.3 The relevant provisions are contained
in ss 114–117 of the 2003 Act. Amongst them is a new judicial discretion
to admit hearsay that is not otherwise admissible under the 2003 Act:
s. 114(1)(d). However, this discretionary power will only have to be
invoked for statements made by absent witnesses if their evidence is not
first admitted under one of the Act’s other provisions. The circumstances
in which this will occur have been considerably expanded from those
currently contained in, for example, s. 23 of the Criminal Justice Act
1988. Nevertheless, although liberalised, these changes still do not meet
the demands of those, like Sir Robin, who would have liked the hearsay
provenance of evidence to be limited to a factor affecting weight (as
occurs in civil cases), rather than admissibility. The evidence of absent
witnesses must still satisfy one of the requirements set out in the Act to
be allowed into evidence.
Criminal Justice Act 2003, s. 116: unavailability of
witnesses
Section 116 of the Criminal Justice Act 2003 allows earlier statements
made by many witnesses who are subsequently unavailable to testify at
trial to be adduced in evidence. To a significant extent, the section is a
reworking of s. 23 of the Criminal Justice Act 1988 (which is repealed by
s. 136 of the 2003 Act). However, a major limitation on s. 23, that only
documentary (rather than oral) statements could be adduced under its
provisions, does not apply to the new section. The Law Commission’s
suggestion that the exceptions should extend to spoken as well as
written hearsay has been followed, and the Criminal Justice Act 2003
provides that an admissible statement is a representation made by
‘whatever means’: s. 115(2). This is not qualified elsewhere in the
Act.4
Additionally, s. 23(1) of the 1988 Act only allowed in earlier state-
ments as evidence of any fact ‘of which direct oral evidence by him [the
witness] would be admissible’. As a result, it was limited to first-hand
hearsay, i.e. what the witness who made the statement would have said
themselves if they had given evidence in court. This qualification is not
contained in the new provision. Nevertheless, it should be noted that
adduction ‘as of right’ under s. 116 is normally limited to first-hand
hearsay statements. Second-hand or multiple hearsay, such as ‘Adam
said that Brenda said that Charles said that he saw …’, is normally
subject...
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