UK Law of Evidence – Essay no.2 (3600 words)
(Word Count – 3600 words. State relevant statutes, Lexis/Nexis PSL and Practical Law. Must incorporate academic law journal articles and include at least 20 case laws (preferably supplement those from the 21st century); use OSCOLA referencing, and based on UK Law).
‘Critically evaluate what effect the Human Rights Act 1998 has had on the law relating to criminal hearsay?
Hints
This question requires you to explore the concept of hearsay, its exceptions, and the impact and limitations of the Human Rights Act (HRA)1998 on this area of evidence.
Resources:
Hearsay rule. What hearsay is and why it has caused problems admitting this evidence in court. Hearsay can be said to be ‘second-hand’ evidence. For example, if A witnessed an offence being committed and related to what he saw to B, and then A died, could B testify as to what A told him? B’s evidence is hearsay and the problem with B testifying is that he might have misheard what A said, he might misconstrue what A said for various reasons, or A may be mistaken as to what he saw. A obviously cannot be called to give evidence because he is dead, but without this evidence, the court is denied relevant evidence. If the hearsay evidence is admitted (either in a written statement, or by B testifying) then the defendant may be at a disadvantage because A’s evidence cannot be tested properly by cross examining him – because he’s dead, and B will not be able to testify as to the truth of the statement – because he did not witness the offence. Would the accused receive a fair trial if the evidence against him was hearsay evidence?
The statutory exceptions to the hearsay rule in criminal trials contained in s114 Criminal Justice Act 2003, which have had the effect of allowing in much more hearsay evidence than was previously allowed. The provisions have, like the bad character provisions of the same Act, generated considerable case law as the courts grapple with the task of interpreting the various sections of the Act.
Most of these cases have concerned the fairness to the defendant of admitting hearsay evidence against him when the maker of the original statement cannot have his evidence tested by cross-examination. Article 6(3)(d) ECHR is of central importance in this respect, and the issue resulted in initial disagreement between the European Court of Human Rights and the UK Supreme Court. The CJA 2003 provides safeguards to the admission of hearsay statements, including to enable the defendant to achieve a fair trial, and the disagreement between the two courts was whether the safeguards provided sufficient protection to the defendant.
Requirements:
You MUST also include the below-mentioned mandatory subheadings in your essay,
- A short introduction, including the definition of hearsay and the hearsay rule.
- Examine the dangers of admitting hearsay evidence at trial and hearsay evidence that cannot be tested by cross-examination, including fair trial issues under Article 6 ECHR and HRA 1998.
- Evaluate the admissibility of hearsay evidence in criminal trials and the main statutory exceptions to the hearsay rule contained in the Criminal Justice Act 2003, concerning HRA1998.
- Explain the safeguards for the admissibility of hearsay evidence contained in ss123-126 CJA 2003, concerning HRA1998
- Examine recent case law from the ECHR and the domestic courts relating to Art 6(3)(d) ECHR and HRA 1998, including assessing how the safeguards provide sufficient protection to the defendant.
- Conclusion
