GUIDANCE ON PRIOR STATEMENTS AND HEARSAY EVIDENCE
This guidance accompanied a talk given by Brian McConnachie QC in June 2012. The hand-out is designed to be, in so far as possible, a guide to prior statements and hearsay evidence which hopefully helps practitioners in a real practical way and contains as much of the relevant legislation and case law as counsel could reasonably incorporate. A PDF version of the talk is also available to download.
Trial by Statement
This seems to be here to stay whether we like it or not. There are now new provisions about witnesses seeing statements to avoid what was referred to by Lord Coulsfield in his Review on Disclosure as the "one sided memory test". Section 261A of the Criminal Procedure (Scotland) Act 1995.
However it is important to know what is being done i.e. the purpose of the prior statement. Seems to me to be three possible scenarios
- A. Prior Inconsistent Statement
- B. Jamieson
- C. Adoption of Statements
•A. Prior Inconsistent Statement
Section 263(4) of the CP (Sc) Act 1995 states as follows: -
"(4) In a trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified."
This is the section which the Crown or defence use basically to try and discredit a witness.
It is essential that it is set up properly by you or perhaps more importantly by the Crown before the statement is put to the witness.
Have they said something different before?
Specify the date, place and details of who took the statement.
The lines thereafter become somewhat blurred and what was a plan to discredit the witness becomes a plan of having the witness agree that he/she was right on the previous occasion. There is a definite skill in putting prior statements, which, despite the frequency with which it is used, is not always evident.
B) Jamieson v HMA (No.2) 1994 SCCR 610
This is perhaps the one most used nowadays and possibly least understood. The basis for using Jamieson is that the witness made a statement to the police at the time but for whatever reason has now forgotten what it was they said. However they are prepared to accept that they made a statement to the police and that what they told the police at the time was the truth. The position then is that their statement becomes their evidence provided that there is evidence given that the statement was made! That is done either by leading the police officer who took the statement or an agreement in a Joint Minute. Failure to complete the circle means the evidence is of no value.
The recent case of A v HMA 2012 HCJAC 29 in which Lord Bonomy delivers the main judgement makes it clear that for the statement to be treated as evidence of the truth of its contents four things need to be in place
1. The witness must be able to remember giving a statement to the police.
2. The witness must be able to say the statement was true.
3. The witness must be unable to recollect the events spoken to in the statement and
4. A police officer must give evidence of recording the statement and its contents.
In a recent case at Glasgow High Court, using the above case, I successfully persuaded Lord Stewart that the Crown could not put a prior statement to a witness using Jamieson as the witness was claiming he could not remember giving a statement to the police accordingly the Crown failed at the first hurdle. In addition they failed the second hurdle since if he could not recollect giving the statement how could he say it was true.
There is a view prevalent amongst prosecutors in particular that Section 260 is the "statutory embodiment" of Jamieson. They seem to think that the two are interchangeable. The cases of Sean Hughes v HMA 2009 HCJAC 35 and A (referred to above) tell us otherwise.
In Hughes Lord Marnoch gave the judgement of the court and it was perhaps treated as a bit of an aberration on his part. However A confirms the view that he was right after all.
Having regard to the cases referred to above it appears that "adoption" in terms of Section 260 is almost reserved for formal matters with the Courts making specific reference to Section 260(3) as demonstrating the difference between Jamieson and this section.
The terms of the Section are set out below: -
260 Admissibility of prior statements of witnesses.
(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
(2) A prior statement shall not be admissible under this section unless -
(a) the statement is contained in a document;
(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
(c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
(4) Subsections (2) and (3) above do not apply to a prior statement-
(a) contained in a precognition on oath; or
(b) made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,
and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.
(5) A prior statement made by a witness shall not, in any proceedings on indictment, be inadmissible by reason only that it is not included in any list of productions lodged by the parties."
What is clear from the cases is what is set out in Hughes and repeated in A
"..the starting point in all criminal trials in Scotland remains parole evidence. To put a written statement before a witness for the purpose of leading him in chief is clearly unacceptable and before therefore, reference is made to any written statement the purpose of doing so should be clear, whether it be a challenge under section 263(4) of the 1995 Act, an intention to invoke Jamieson (No.2) or, as we hope we have just made clear, an invocation of the discrete provisions of section 260."
The moral is, I think, to challenge the prosecution when it is using prior statements to explain what it is doing and why. Experience shows they often do not know.
There are certain exceptions to the hearsay rule set out in Renton & Brown's Criminal Procedure at 24-132 to 24-140. Given the time constraints I do not intend to deal with them but to concentrate on the statutory position.
Section 259 of the 1995 Act provides:
"Exceptions to the rule that hearsay evidence is inadmissible.
(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings shall be admissible in those proceedings as evidence of any matter contained in the statement where the judge is satisfied-
(a) that the person who made the statement will not give evidence in the proceedings of such matter for any of the reasons mentioned in subsection (2) below;
(b) that evidence of the matter would be admissible in the proceedings if that person gave direct oral evidence of it;
(c) that the person who made the statement would have been, at the time the statement was made, a competent witness in such proceedings; and
(d) that there is evidence which would entitle a jury properly directed, or in summary proceedings would entitle the judge, to find that the statement was made and that either-
(i) it is contained in a document; or
(ii) a person who gave oral evidence in the proceedings as to the statement has direct personal knowledge of the making of the statement.
(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement-
(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
(b) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
(c) is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or
(e) is called as a witness and either-
(i) refuses to take the oath or affirmation; or
(ii) having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement refuses to do so,
and in the application of this paragraph to a child, the reference to a witness refusing to take the oath or affirmation or, as the case may be, to having been sworn shall be construed as a reference to a child who has refused to accept an admonition to tell the truth or, having been so admonished, refuses to give evidence as mentioned above.
(3) Evidence of a statement shall not be admissible by virtue of subsection (1) above where the judge is satisfied that the occurrence of any of the circumstances mentioned in paragraphs (a) to (e) of subsection (2) above, by virtue of which the statement would otherwise be admissible, is caused by-
(a) the person in support of whose case the evidence would be given; or
(b) any other person acting on his behalf,
for the purpose of securing that the person who made the statement does not give evidence for the purposes of the proceedings either at all or in connection with the subject matter of the statement.
(4) Where in any proceedings evidence of a statement made by any person is admitted by reference to any of the reasons mentioned in paragraphs (a) to (c) and (e)(i) of subsection (2) above-
(a) any evidence which, if that person had given evidence in connection with the subject matter of the statement, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;
(b) evidence may be given of any matter which, if that person had given evidence in connection with the subject matter of the statement, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and
(c) evidence tending to prove that that person, whether before or after making the statement, made in whatever manner some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
(5) Subject to subsection (6) below, where a party intends to apply to have evidence of a statement admitted by virtue of subsection (1) above he shall, [by the relevant time], give notice in writing of-
(a) that fact;
(b) the witnesses and productions to be adduced in connection with such evidence; and
(c) such other matters as may be prescribed by Act of Adjournal,
to every other party to the proceedings and, for the purposes of this subsection, such evidence may be led notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
[(5A) In subsection (5) above, "the relevant time" means-(a) in the case of proceedings in the High Court-
(i) not less than 7 days before the preliminary hearing; or
(ii) such later time, before the trial diet, as the judge may on cause shown allow;
(b) in any other case, before the trial diet.]
(6) A party shall not be required to give notice as mentioned in subsection (5) above where-
(a) the grounds for seeking to have evidence of a statement admitted are as mentioned in paragraph (d) or (e) of subsection (2) above; or
(b) he satisfies the judge that there was good reason for not giving such notice.
(7) If no other party to the proceedings objects to the admission of evidence of a statement by virtue of subsection (1) above, the evidence shall be admitted without the judge requiring to be satisfied as mentioned in that subsection.
(8) For the purposes of the determination of any matter upon which the judge is required to be satisfied under subsection (1) above-
(a) except to the extent that any other party to the proceedings challenges them and insists in such challenge, it shall be presumed that the circumstances are as stated by the party seeking to introduce evidence of the statement; and
(b) where such a challenge is insisted in; the judge shall determine the matter on the balance of probabilities, and he may draw any reasonable inference-
(i) from the circumstances in which the statement was made or otherwise came into being; or
(ii) from any other circumstances, including, where the statement is contained in a document, the form and contents of the document.
(9) Where evidence of a statement has been admitted by virtue of subsection (1) above on the application of one party to the proceedings, without prejudice to anything in any enactment or rule of law, the judge may permit any party to lead additional evidence of such description as the judge may specify, notwithstanding that a witness or production concerned is not included in any list lodged by the parties and that the notice required by sections 67(5) and 78(4) of this Act has not been given.
(10) Any reference in subsections (5), (6) and (9) above to evidence shall include a reference to evidence led in connection with any determination required to be made for the purposes of subsection (1) above."
The Act sets out the law in relation to the admissibility of hearsay evidence. There has been dubiety off and on about whether or not the old common law rules in relation to dead witnesses survived alongside the statutory provisions. The answer is that they do not. There have been two relatively recent decisions on the matter. In Parracho (unreported) Lord Matthews reached the view that the statute superseded the common law provisions and in another case Stewart and Malloy (unreported) Lord Bracadale convened a court of three judges (Lord Doherty and Lord Bannatyne being the others) before ruling that the common law was indeed superseded by the statute. Unfortunately, despite his saying that a judgement would be issued none has been forthcoming. The case came to a conclusion on 3 October 2011 at Glasgow High Court and I presume that the Court Minutes could be obtained, if required, and they will contain the decision. It should be noted however that although three judges were involved in making that decision it is still considered as a single judge decision as the others were in an advisory capacity. Nonetheless it is likely to be considered of substantial persuasive value.
The other aspect of the primary legislation I wish to concentrate on is Section 259 (2) (e) (ii).
HMA v Joseph Lindsay and others
Glasgow High Court concluding on 30 May 2012. This case is unreported and will presumably remain so as all four accused were eventually acquitted but it is firstly of some interest of itself and secondly perhaps indicative of a line which the Crown may seek to take in future cases.
The charges were an evidential drugs charge and a charge of abduction of a 16 year old boy all arising from a drugs transaction that did not go according to plan!
In that case the witness (abductee), giving evidence at a third trial on the matter, maintained that he had no recollection of the events of the 24th and 25th October 2008 when it was alleged he had been abducted. In addition he had no recollection of giving a statement to the police and could not confirm that what he told the police was the truth. After objection and argument the AD was unable to use either Jamieson or Section 260 to place the witnesses statements before the jury. At that time, encouraged by the Trial Judge Lord Stewart he made an application under the above subsection. Lord Stewart held that the witness was refusing to give evidence in terms of the Act and allowed the AD to lead the statements of the witness given at the time through the mouth of the police officer who took them.
This seemed a very dangerous route since it meant that the judge had decided that the witness was lying, and said so in his judgement, and he would have to explain to the jury why they were hearing this otherwise inadmissible evidence. As it happens in his charge he gave the jury no explanation for it at all. I am firmly of the view that this decision was wrong and that "refusal" means what it says and the authorities seem, as I read them, to support that view. However since there was an acquittal there will be no Appeal Court ruling. It is of concern, to me, that this AD may have had authority from a Law Officer to try this and that the Judge encouraged the submission.
Brand v HMA 2011 HCJAC 74 is a recent case which deals with the issue of whether one accused can lead evidence of a co-accused's police interview in circumstances where the Crown could not because, for example, it was not Cadder compliant. The short answer is that he cannot. However Section 261(2) does allow for an accused to use admissible statements from a co-accused as evidence and the relevant terms are reproduced below: -
Section 261 of the 1995 Act provides:
"Statements by accused.
(1) Subject to the following provisions of this section, nothing in sections 259 and 260 of this Act shall apply to a statement made by the accused.
(2) Evidence of a statement made by an accused shall be admissible by virtue of the said section 259 at the instance of another accused in the same proceedings as evidence in relation to that other accused.
(3) For the purposes of subsection (2) above, the first mentioned accused shall be deemed-
(a) where he does not give evidence in the proceedings, to be a witness refusing to give evidence in connection with the subject matter of the statement as mentioned in paragraph (e) of subsection (2) of the said section 259; and
(b) to have been, at the time the statement was made, a competent witness in the proceedings.
(4) Evidence of a statement shall not be admissible as mentioned in subsection (2) above unless the accused at whose instance it is sought to be admitted has given notice of his intention to do so as mentioned in subsection (5) of the said section 259; but subsection (6) of that section shall not apply in the case of notice required to be given by virtue of this subsection."
In all cases the court has no discretion but to admit the evidence under Section 259 provided it comes within the terms of the section. It has no statutory power to hold that despite the existence of the statutory circumstances it would be unfair to the accused or contrary to the interests of justice to allow a party to rely on the hearsay statement. This is in marked contrast to the English position. The then Lord Justice Clerk, Gill, commented unfavourably on this distinction in Nulty v HMA 2003 SCCR 378. The judge does however have to consider at all stages whether or not the admission of such evidence deprives the accused of his right to a fair trial under Article 6. That may be a decision which is obvious at the outset or, more likely, can only be made once the whole state of the evidence is known. The leading case on the matter is Al-Khawajah v UK 2011 ECHR 2127 .
The conclusion is set out in Paragraph 147 as follows: -
"The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case."
The case is a long one but well worthy of proper consideration.
Brian McConnachie QC
21st June 2012