outofcourtstatement

The short answer is hearsay.

Let me explain.

My client and the unnamed pop star

Unhappy with the way in which he’d been treated on a bus, my client not only threw a brick at the bus, it was also alleged by a pop star passerby, that he went on to throw a brick at a parked BMW, smashing one of the windows.

The pop star witness gave brilliant evidence to the police. They gave a clear description to the police of the time of the incident, a detailed description of the clothes the man was wearing and what he looked like, and they even noted the direction he ran off to.

The statement to the police couldn’t have been better –  but it was inadmissible.

While this witness was happy to help the police find the man who smashed a brick into the car window, the witness did not want to come to court.

On the day of trial, I wondered if the pop star and an entourage might show up, but they never did.

The criminal damage charge against my client re the smashed car window was dropped at court.  The Crown could not rely on the pop star’s witness statement.

The only way the prosecution could attempt to prove the car window smash was by the pop star getting up and giving live evidence of what they saw in court.

The reason why is the rule against hearsay.

Hearsay is defined in s114(1) of the Criminal Justice Act, 2003 as:  “a statement not made in oral evidence in the proceedings that is evidence of any matter stated.”

or in other words:

An out of court statement offered for the truth of the matter stated.

The pop star’s statement was given to the police at the scene and not in court – that makes it an “out of court statement”; and the reason the pop star gave the statement to the police was to give evidence as to the truth of what they witnessed. This made the pop star’s statement hearsay.

Because of the general rule against hearsay, the prosecution were not allowed read the pop star’s witness statement into evidence.

No evidence, no case, charge dropped.

Can someone read their own statement out loud at court?

Even if the pop star had come to court, because of the rule against hearsay, they could not have simply read their witness statement to the court – because that statement would still be an out of court statement offered for the truth of the matter stated.

The rules do however allow a witness to refresh their memory before court starts and, sometimes, during court.

“Refreshing” by looking at your statement and saying, “yes, I remember, x happened next” is different to “reading out loud verbatim”.  And the reason why one cannot simply read out their statement or another’s is because that would be hearsay.

So while my client was found guilty of the bus brick, the prosecution were not able to offer any evidence against him re the BMW window smash – and that charge was dropped.

Like many legal rules, there are exceptions.

One exception is if the parties agree the evidence.

But why would my client agree the pop star’s evidence when he disputed it?

Don’t worry. Many police also find the hearsay concept confusing.

While police officers generally understand that they have to come to court and give evidence in person, some don’t refresh their memories with their statements before coming into court, and they try to read their statements verbatim. They are surprised that’s hearsay.

Mind you, it’s not always the police officer’s fault. I’ve seen prosecutors, who really should know better, invite police officers to read their statements out loud – all the way from, “I was on duty in full uniform when a call came over my police radio to attend a report of a disturbance …”  to, “I handcuffed xxx in the rear stack position and escorted him to the Islington Police Station where his detention was authorised”.

That’s just lazy and wrong – and hearsay.

So why do I have to go to court?

Because while your statement to police may help police find and arrest the perpetrator of a crime, a statement on its own is generally not enough to convict them.

While there are a few exceptions to the rule against hearsay, if you have witnessed someone commit a crime, you need to be prepared to follow-up your statement to police by going to court and giving live evidence of what you saw in order for the case to be proved in court.

Warning

Regardless of whether you’ve been summoned or not, the penalty for refusing to give evidence can be a fine or time in custody as per s97 of the Magistrates Courts Act, 1980.

What if I really do not want to give evidence?

You may want to take advice from a qualified barrister or solicitor who has experience of dealing with Criminal trials and procedure. You may also/alternatively want to talk to the officer dealing with the case. It may be that Special Measures can be applied for which will make your evidence giving a bit easier.