EWJ FEB 59 2025 web - Flipbook - Page 81
Dovetailing and Disclosure Exploring the Clarification of Hearsay
Provisions in R v BOB, BYY, AEN,
and BEK [2024] EWCA Crim 1494
Georgia-Mae Chung examines the Court of Appeal’s decision in R v BOB, BYY, AEN, and
BEK [2024] EWCA Crim 1494.
(2) In such a case—
Overview
This case concerned an appeal by the prosecution in
a matter where two of their witnesses had died before
trial. The Crown had applied to admit their witness
statements into evidence through the hearsay provisions. However, the trial judge had ruled that they
were inadmissible.
(a) any evidence which (if he had given such evidence) would
have been admissible as relevant to his credibility as a witness
is so admissible in the proceedings;
(b) evidence may with the court’s leave be given of any matter
which (if he had given such evidence) 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;
The Court of Appeal’s judgment involved the
application of established principles to the facts of the
case rather than any development of law. However, it
produces welcome clarity regarding considerations of
disclosure and the jury’s function in assessing the reliability of hearsay evidence. It does so through its reformulation of those established principles outlined in R v
Riat [2012] EWCA Crim 1509; [2013] Cr. App. R. 2.
(c) evidence tending to prove that he made (at whatever time)
any other statement inconsistent with the statement admitted as
evidence is admissible for the purpose of showing that he contradicted himself.
(3) If as a result of evidence admitted under this section an
allegation is made against the maker of a statement, the court
may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying
or answering the allegation.
Relevant Provisions
The law on admissibility of hearsay is governed by the
provisions of the Criminal Justice Act 2003, further
developed by R v Horncastle [2009] UKSC 14; [2010] 1
Cr. App. R. 17.
(4) In the case of a statement in a document which is admitted as evidence under section 117 each person who, in order
for the statement to be admissible, must have supplied or received the information concerned or created or received the
document or part concerned is to be treated as the maker of the
statement for the purposes of subsections (1) to (3) above.
Horncastle assists with the principle that hearsay
evidence may be admitted if it is either “demonstrably
reliable” or its reliability is “capable of proper testing
and assessment”. The court in Riat described this as
two “paired expressions”. If evidence is demonstrably
reliable, there is, unsurprisingly, less difficulty in
considering its admissibility.
Riat provides “practical guidance” that acts to flesh out
this and other considerations involved in deciding the
outcome of applications relating to hearsay. This guidance is in the form of six steps that were outlined by
Hughes LJ as follows:
In contrast, the second of the paired expressions often
necessitates the application of a more complex exercise.
If the judge rules that the evidence is nevertheless capable of proper testing and assessment, then that testing and assessment will be a function of the jury.
“The statutory framework provided for hearsay evidence by
the CJA 2003 can usefully be considered in these successive
steps:
i) is there a specific statutory justification (or “gateway”)
permitting the admission of hearsay evidence (ss.116–118)?
Section 124(2) of the 2003 act facilitates this testing
and assessment by enabling evidence which tends to
undermine the reliability of a hearsay statement to be
adduced before the jury. This is described in Riat as
“independent dovetailing evidence”:
ii) what material is there which can help to test or assess the
hearsay (s.124)?
iii) is there a specific “interests of justice” test at the admissibility stage?
124 Credibility
iv) if there is no other justification or gateway, should the
evidence nevertheless be considered for admission on the
grounds that admission is, despite the difficulties, in the
interests of justice (s.114(1)(d))?
(1) This section applies if in criminal proceedings—
(a) a statement not made in oral evidence in the proceedings
is admitted as evidence of a matter stated, and
v) even if prima facie admissible, ought the evidence to be
ruled inadmissible (s.78 of the Police and Criminal Evidence
Act 1984 (PACE) and/or s.126 of the CJA 2003)?
(b) the maker of the statement does not give oral evidence in
connection with the subject matter of the statement.
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