Hearsay, bad character and identification evidence

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The very wide use of the provisions of section 114(1)(d) of the Criminal Justice Act 2003 to allow the admission, as evidence of its truth, of hearsay evidence is further confirmed by the decision in R v RL [2008] EWCA Crime 973.

A non-compellable witness had made and signed a statement for the police but then declined to give oral evidence. The defence argued that, as the witness could not be ordered to give evidence at trial, it was wrong for use to be made of her written statement. The court held that submission was not correct if the interests of justice otherwise required.

The defence argued that, in that event, the evidence should not be admitted because the witness had not been warned that, if she did choose to sign the statement, it might be used notwithstanding a later wish that it was not. The court held that that was a relevant consideration to the exercise of the discretion available to the court under section 114(2), but that it was not a decisive consideration.

There are fewer decisions on the operation of section 114(1)(c), which allows for the admission of hearsay evidence by agreement. However, in Emlyn Williams (t/a Williams of Porthmadog) v Vehicle and Operators Services Agency 172 JP 328, the Divisional Court held that an agreement does not require a contractual or express agreement. It might be inferred if there was no objection taken to hearsay evidence. In the particular case, where the defendant was unrepresented, the court was more willing to indicate that the evidence should not be admitted. However, where solicitors are instructed great care will be needed, not merely to acknowledge receipt of a statement which contains hearsay, but expressly to point out that there are objections to its admission.

Every letter acknowledging section 9 statements should make clear that hearsay evidence is not agreed. However, defence solicitors will also wish to take advantage of this decision and will serve suitable section 9 statements on the prosecution so that hearsay evidence may be admitted if no objection is taken by the Crown.

Some control on the use of hearsay evidence is being imposed by the European Court. In Kaste and Mathisen v Norway 48 EHRR 45(3), the court held that a co-suspect was a ‘witness’ within article 6(3)(d) so that there had to be a ‘confrontation’ where their evidence was significant to a material degree. A hearsay statement should not be admitted.

Most significantly, in Al Khawaja v UK, the court held that article 6(3) of the European Convention on Human Rights prevents the sole or decisive evidence in any case being given as hearsay. The article constitutes an express guarantee and is not an illustration of an issue going to overall fairness, as the English courts had interpreted it. The defendant’s evidence and a summing up could not put right the default.

Bad characterIn R v McKenzie [2008] EWCA Crim 758, the Court of Appeal indicated that considerable caution was required before a court allowed the admission as bad character of reprehensible behaviour – that is bad character other than previous convictions. The court emphasised that such material must not attract undue attention. A court should also be keen to avoid a trial of collateral issues. Difficulties faced by the defence in countering such allegations should also be borne in mind under section 101(3) of the Criminal Justice Act 2003. As there had been no prosecution in relation to the relevant incidents there would not be a complete file and the defence would not have had a timely opportunity to respond.

On the facts of the particular case, however, where the Crown relied on previous incidents of bad driving as reprehensible behaviour, even though there was no conviction, to prove aggressive and impatient driving, the court was satisfied that the evidence should be admitted. In R v Nguyen [2008] Crim LR 547, the court made clear that it is not of necessity unfair to admit in proceedings as evidence of bad character, material on which the court or Crown had earlier decided not to prosecute.

The most important decision for defence lawyers may be that in R v Davies [2008] EWCA Crim 1156. This is of particular relevance where the Crown seeks to admit evidence not under the propensity head (d), but as important explanatory material (c), false information (f) or imputation (g). The court has long held that once evidence of bad character is admitted through any gateway, it becomes available for all purposes to the magistrates or the jury. Yet if it was not admissible as evidence of propensity, then it may be unfair to admit it for any other purpose as the court or jury might misunderstand its purpose. In those circumstances section 78 of the Police and Criminal Evidence Act 1974 could be used to exclude the material, notwithstanding that it was otherwise relevant.

Identification evidence

Ear Prints: while evidence of ear-prints is admissible, the facts of each individual case have to be examined very carefully. They were capable of identifying persons responsible for a crime only when sufficient minutiae could be identified and matched rather than gross features alone (R v Kempster [2008] EWCA Crim 975).

Identification from CCTV: in R v Smith & ors [2008] 7 Archbold News 2, the court indicated that where a police officer is asked, for identification purposes, to watch CCTV film, protections should be put in place to ensure that he can truly identify the person responsible for a crime. This will enable the jury to make a proper judgement as to the witness’s reliability.

Voice recognition: in R v Flynn and St John [2008] Crim LR 799, the court held:1. Identification of a suspect by voice recognition was more difficult than visual identification; 2. Identification by voice recognition was likely to be more reliable when carried out by experts using acoustic and spectrographic techniques, as well as sophisticated auditory techniques, than by lay listener identification; and3. The ability of a lay listener to identify voices correctly was subject to a number of variables. The following factors were relevant:

  • The quality of the recording of the disputed voice or voices;
  • The gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice;
  • The ability of the individual lay listener to identify voices in general – the ability of an individual to identify voices varied;
  • The nature and duration of the speech sought to be identified – some voices were more distinctive than others and the longer the sample of speech the better the prospect of identification; and
  • The greater the familiarity of the listener with the known voice the better his or her chance of accurately identifying a disputed voice – research showed that a confident recognition by a lay listener of a familiar voice might nevertheless be wrong.

4. The crucial difference between a lay listener and expert speech analysis was that the expert was able to draw up an overall profile of the individual’s speech patterns. The lay listener’s response was fundamentally opaque. The lay listener could not know or explain which aspects of the speaker’s speech patterns he was responding to. He also had no way of assessing the significance of individual observed features relative to the overall speech profile (in contrast to a case of visual identification). The opaque nature of the lay listener’s voice recognitions would also make it more difficult to challenge the accuracy of the evidence. In this context police officers were lay listeners.

On the facts of the particular case, the poor quality of the covert recording of the voices was such that the expert could not analyse the voices by reference to individual speakers, which was a prerequisite for making a speaker-identification. Recording by means of a telephone device further distorted the voice.

Anthony Edwards, TV Edwards, London

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