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Rape and Sexual Offences                   Chapter 13: Hearsay

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Applying the rules in relation to the admissibility of hearsay evidence contributes significantly to the effective prosecution of sex offences. The use of evidence of first complaint, of missing and reluctant witnesses and the admission of previous consistent or inconsistent statements may considerably enhance the prosecution case.

The admissibility of hearsay evidence is subject to the provisions to be found in the Criminal Justice Act 2003 (the Act). Detailed guidance on the hearsay provisions is provided in the hearsay chapter of the legal guidance available on the infonet and CPS website.

  • Investigators should be reminded and encouraged to obtain evidence of all complaints of crime made by victims to witnesses including friends, police officers, doctors and nurses.
  • In R v Xhabri [2005] EWCA Crim 3135 the court admitted evidence of complaints made by a Latvian victim of kidnapping and controlled prostitution to her parents, a friend and indirectly to the police. Not only did the court allow the victim to give evidence of making the complaints but also allowed the recipients of the complaints to give evidence of what they had been told and accepted the evidence as evidence of the truth of the statement.
  • From 1 February 2010, section 112 of the Coroners and Justice Act 2009 amended the power to admit consistent statements of complaint by repealing the requirement that the complaint must be made 'as soon as could reasonably be expected after the alleged conduct'.
  • In the case of children's personal diaries being used in child abuse cases: if it is shown that the diary was written not intending it to be read by anyone, the entries are direct evidence and not hearsay evidence within the definition of section 115. This is in contrast with the situation where their purpose is to 'cause another person to believe the matter'. (R v N(K) [2006] EWCA Crim 3309.)

Consider whether to proceed in face of withdrawal or hostile witness

Where a victim wishes to withdraw their evidence or gives evidence that amounts to a withdrawal or is inconsistent with the original allegation the original evidence may nevertheless become admissible and evidence of the truth.

Section 116 contains the conditions for admitting evidence of absent witnesses. The evidence of witnesses who are dead, unfit to be a witness by reason of bodily or mental condition, outside the UK or untraceable is admissible upon proof of those facts. The evidence, if it is prosecution evidence, may be excluded under section 78 of the Police and Criminal Evidence Act 1984 if it is unfair, but even if it is the sole or main evidence it may still be admitted. See R v Cole and Keet [2007]EWCA Crim 1924.

Statements of witnesses who are in fear of attending as a witness are admissible with the permission of the court. It is important to obtain evidence of any pressure put on or interference with the victim or witnesses to support the application.

Section 119 of the Act enables a previous inconsistent statement of a witness who withdraws support or departs from their evidence to be admissible so long as they give some evidence.

A good example is provided in R v Joyce [2005] EWCA 1785 where the defendant was positively identified by several witnesses who made detailed statements to the police setting out the certainty of their identification. At trial the witnesses all claimed that they were now uncertain as to their identification, contrary to their previous statements. The clear inference was that the witnesses had been put under pressure to change their evidence. The judge admitted the previous statements as evidence of the original identifications and the jury convicted on the basis that these earlier statements were true.

However victims of rape who retract their original complaint and no longer support the prosecution may do so for a variety of reasons including pressure from the suspect or others, fear of violence, a desire to give an existing relationship a chance and issues relevant to their children. Before requiring the victim to give evidence careful consideration will need to be given to whether a prosecution is in the public interest.

The interest of justice route

Section 114 (1)(d) of the Act provides that hearsay evidence can be admitted if the court is satisfied that it is in the interests of justice for it to be admissible. Originally described by commentators on the Act as a 'safety valve' this provision has proved of tremendous assistance in practice. For example, in the case of R v Xhabri referred to above, the court considered the admissibility of various statements of complaint, some of which were multiple hearsay, and not only gave a wide interpretation of the conditions attached to the statutory requirements but expressly stated that even if the conditions were not met then it would be appropriate to admit the evidence under section 114(1)(d).

Procedure

The Criminal Procedure Rules Part 34 contains the provisions for the giving of notice, the form of the notice and the time limits.

Wherever possible, applications should be made within the time limits. However, the time limits are tight (14 days after committal or serving the case in the Crown Court and at the time of initial disclosure in the magistrates court). When there is likely to be delay then it is important to establish the reason for delay. The court and the parties should be given as much information as possible about likely applications. The court has discretion to alter or waive time limits. So long as the prosecution have acted reasonably and expeditiously it is likely that time limits will be extended. (R (on the application of Robinson) v Sutton Coldfield Magistrates' Court [2006] 2 Cr App R. 13).

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