Infringement of Human Rights

One of the most interesting feature of the Act is the "safety valve", which by virtue of s. 114 (1)(d), the court may admit evidence if it is satisfied that it is not contrary to the interests of justice to do so. Worthern argues that this provision "acts to urge the courts to undertake a very broad investigation when making a decision". [38] Where the admission of the evidence would ensure the commission of a fair trial the courts would thus permit it to be adduced. [39] The highly flexible inclusionary discretion under s. 114 (1)(d) is capable of including other specific exceptions contained throughout CJA.

This could be taken to mean that even if an evidence is rejected under the preserved common law exception, it might still be possible for the court to admit it under the inclusionary discretion provided for in s. 114(1)(d). However, it has been argued that this could caused problem as statement could have been admitted under s. 114(1)(d) without needing to consider first the more strict conditions and requirements set out under those exceptions. [40] Lord Cooke thus commented with sarcasm that the safety valve was basically the only provision required.

S.114 (2) of CJA has listed out various factors to be considered in relation to the exercising of the inclusionary discretion. Nonetheless, in cases such as R v Kavallieratos,[41] hearsay evidence has been admitted despite no reference having been made to those factors at all. [42] It is thus contended that the safety valve should be withdrawn for reasons of uncertainty and the over-dependant on judicial discretion. [43] Implied Assertions The way in which the concept of hearsay has been interpreted by the courts under common law has similarly caused problem and this is especially in relation to the term "implied assertions" used.

Unfortunately, this is a problem that CJA has not entirely resolved. Under common law, statements where the maker unintentionally asserted some relevant fact were treated as hearsay and excluded. [44] In R v Kearley,[45] the police officers heard over the phone that the appellant was being asked for their "usual" supply of drugs. Such requests were inadmissible hearsay evidence as they are to be regarded as an unintentional implied assertion that they had been supplied by him before. S.

115(3) intended to set aside the view of the majority in Kearley by limiting implied assertions within statements made with a purpose to "cause another to believe the matter" and specifically to treat such evidence as non-hearsay. Although the principal aim of CJA was to solve the problem on Kearley, it however ignores the fact that Kearley was a case about relevance. Birch was therefore of the opinion that non-hearsay evidence is not necessarily admissible as it may be irrelevant or even lack of probative value. [46] One question poses in relation to implied assertion is that whether the decision in Kearley has in fact been reversed by CJA.

By looking at the wording of s. 115(3), CJA's objective is to separate intentional implied assertion from unintentional implied assertion, so this could be taken to mean that only intentional implied assertions will be admissible as they come within the ambit of the provisions. As nothing about unintended assertion has been mentioned, it is therefore still possible for out-of-court statements where the purpose of the person making the statement was not to cause their hearer to believe the matter stated to be hearsay evidence. The unintentional implied assertion, as that under Kearley will still remain as hearsay.

[47] Automatic admissibility- The 'fear' condition Under CJA, s. 116 provided that statements are automatically admissible where it satisfies the conditions set out herein in s. 116 (2). S. 116(2)(e) stated that statements not made in oral evidence as a result of the fear of the witness may be admitted with the leave of the court so that the court is satisfied that it is in the interests of justice to admit the statement. [48] As there is nothing in the provision indicating that the admissibility of the fear must be a reasonable one, the genuineness of the fear might thus be questioned.

In Belmarsh Magistrates' Court, ex parte Gilligan,[50] it is shown that there is no manner on how fear is to be proved and Acton Justices, ex parte McMullen[51] signified that fear need not be attributable to the offence itself, or something said or done which could be related directly to the offence. Thus, the difficulty in proving fear is that reluctant witness might be hiding behind an automatic exception for reason of avoiding being drawn into proceedings. [52] CJA should therefore have devised a manner in which fear is to be proved.

Statements as Narrative and as Hearsay At common law, the rule against previous consistent statements (also known as the rule against narrative) is that the statement cannot be used to enhance the credibility of the witness's oral evidence. However, this is subject to several exceptions and the fact is that even if the previous consistent statements are admitted, it will not be accepted as statements for the truth of the contents and will only be used to demonstrate the consistency of the witness. [53] The exceptions to the rule are: (a) Rebuttal of Late Invention

One of the criticisms in relation to this exception is the requirement that distinction must be made between treating the statement as evidence of its facts and as evidence going to the credibility of the witness. This distinction is criticised as it is seemed to be almost without a difference. [54] By s. 120(2), it is provided that if a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.

[55] In R v Athwal,[56] it is stated that CJA has loosened the harshness of the old law as it has allowed hearsay evidence that is previously inadmissible as hearsay but admissible only as narrative to be admissible. (b) Recent Complaint This exception was being criticised as despite being recognised as a common law exception to the narrative rule, it is only being applied to sexual offences. In addition, the complaints made must be spontaneous, "at the first opportunity after the offence which reasonably offers itself".

[57] This is disputable as research shows that it is unlikely for most victims to tell someone of their misfortune as soon as the event happens. [58] In R v Birks,[59] the court looked into the common law rule which allows only prompt complaints of sexual offence to be admitted. Their view is that it seems to be more reasonable if the evidence of a first complaint is always admissible. Under CJA, the exception was reformulated and evidence of recent complaint is not longer confined to sexual offences.

Unfortunately, CJA does no more than substitute a slightly more open-ended form of words "as soon as can reasonably be expected" for the promptness requirement. [60] (c) Previous Identification The rule against narrative similarly regarded the truth of the earlier identification as impertinent and that it is only allowed to substantiate the evidence given in court. In Sealey v Trinidad and Tobago,[61] Lord Hutton: [witness] testimony cannot go to the issue of the accused's guilt, because he has no first-hand knowledge of it.... "

In this instance, Law Commission view was that it is is untrue that the out-of-court identification plays only a secondary role as it is the witness that comes to the conclusion that the man selected out is the offender at the earlier identification. [62] It is this out-of-court identification that is important and surely, there is no sound reason for excluding available evidence of the earlier identification. As a result, under CJA, the parliament rectified this position by allowing out-of-court evidence to be admitted as evidence of its truth rather than going simply to credibility.

Infringement of Human Rights It has been criticised that our 2003 reform of the hearsay rule conflicts with the rights guaranteed to defendants under Article 6 of the European Convention on Human Rights. Article 6(3)(d) of the ECHR guarantees to all defendants the right "to examine or have examined the witnesses against him" but however, this requirement is not reflected in the "hearsay reform" provisions under CJA. It is provided that under CJA, where a piece of hearsay evidence is admissible, it would be treated as if it has the same potential weight as a piece of oral evidence.

[64] In Al-Khawaja and Tahery v UK[65], CJA was criticised in Strasbourg for its failure to respect the rights of the defendants under Article 6(3) (d) because the defendants had been convicted on the basis of "sole or decisive evidence" put against them from witnesses whom they had not been able to cross-examine. Nevertheless, under s. 126, the court is granted the power to exclude such evidence which it felt that the right of the defendant to a fair trial would be violatd by admitting the evidence.

Conclusion

With the essay discussed above, it has been shown that the enactment of CJA do in fact rectified most of the flawed area of the common law rules of hearsay. However, it is unfortunate that some problems have on the other hand emerged from the CJA itself. The res gestae exceptions formulated under the new law seemed to have prevented the court from exercising their power in examining the reliability of evidence and the function of inclusionary discretion makes other provisions appear to be unnecessary.