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Archie
I was in court last week on failure to provide details - having provided an unsigned form.

A nice lady from the police was called as a witness to tell the court that I had provided an unsigned form. However, in order to make this statement, she has to rely on computer records kept in the office, which were input by a colleague. The colleague who input the data has moved to a new job and there has been no apparent effort on behalf of the police to track her down in order to testify.

My solicitor is arguing that the witness's testimony is inadmissible, as it is "hearsay".

CPS and my solicitor had a long technical debate in court about the law relating to hearsay, quoting primary legislation and also case law. At the end of the debate, the Clerk to the Court, who seems very even-handed, felt unable to give advice to the magistrates. The case has therefore been adjourned so that everyone can do some more swotting up on the law.

Does anyone have any constructive thoughts on this, or anyone aware of helpful precedents?
jeffreyarcher
Are you in Scotland? I haven't seen much mention of hearsay in England & Wales cases.
Indeed, I have seen a Crown Court judge in Cardiff allow hearsay expert advice, given as evidence by an expert who was not an expert on the subject in question, without question. :? (I know what I mean, anyway).
But I have seen mention of it in Scotland?
In general, AIUI, hearsay evidence is not permitted in Scotland.

Didn't they provide a copy of the unsigned form as evidence?
If not (although they now get a second bite at the cherry), and the charge is S172, Mohindra says that there is no evidence that the request was made on behalf of the CofP, and that is a defence to a S172.
mb1rgw
This seems relevant to my case. Apart from the usual stuff, the only evidence is a statement saying that according to the computer records no satisfactory response has been received. Is this actually admissable evidence?

Also, I presume I'm right in saying that the witness is not entitled to make a statement concerning the satisfactoriness :-) of my responses? That is surely a matter for the court to decide. So the statement that "no satisfactory response has been received" is meaningless. The only meaningful statement would have been that such-and-such responses were received.

Is it possible/usual to get an entire s9 thrown out on the basis that it contains statements which the witness is not competent to make?

robin
firefly
QUOTE (jeffreyarcher)
In general, AIUI, hearsay evidence is not permitted in Scotland.

Au contraire Mr Archer ( icon_wink.gif ). It would appear that there are certain exceptions to that. Section 259 of the Criminal Procedure (Scotland) Act 1995 has a fair old bit on the subject.

I stumbled on it when looking for something else.
jeffreyarcher
QUOTE (mb1rgw)
Apart from the usual stuff, the only evidence is a statement saying that according to the computer records no satisfactory response has been received. Is this actually admissable evidence?

What is "the usual stuff?" It is statements like that that get important details missed.
As I've already said,
QUOTE (jeffreyarcher)
Didn't they provide a copy of the unsigned form as evidence?
If not (although they now get a second bite at the cherry), and the charge is S172, Mohindra says that there is no evidence that the request was made on behalf of the CofP, and that is a defence to a S172.

Is the statement admissible without a copy of the said computer records?
That's one for Chris, I think.
jeffreyarcher
QUOTE (firefly)
QUOTE (jeffreyarcher)
In general, AIUI, hearsay evidence is not permitted in Scotland.

Au contraire Mr Archer ( icon_wink.gif ). It would appear that there are certain exceptions to that. Section 259 of the Criminal Procedure (Scotland) Act 1995 has a fair old bit on the subject.

Section 259 :? :?
Not wishing to nit-pick, but sub-sections (2) & (3) are quite restrictive, to the extent that I would suggest that the allowable circumstances would not be so common as to contradict my qualified statement, i.e. In general.
And in any case, as far as I can see, Archie's police lady's hearsay about what her colleague said would not be permitted under that section.
firefly
QUOTE (jeffreyarcher)
Not wishing to nit-pick, but sub-sections (2) & (3) are quite restrictive, to the extent that I would suggest that the allowable circumstances would not be so common as to contradict my qualified statement, i.e. In general.
And in any case, as far as I can see, Archie's police lady's hearsay about what her colleague said would not be permitted under that section.

Possibly, and to a certain extent I concede the point, but (as you and I well know icon_eek.gif ) the depths in which the police will stoop to secure a conviction is not to be underestimated :

--------------------------------------------------------------------------------------
(2) The reasons referred to in paragraph (a) of subsection (1) above are that the person who made the statement—

(a) is dead or is, by reason of his bodily or mental condition, unfit or unable to give evidence in any competent manner;
(B) is named and otherwise sufficiently identified, but is outwith the United Kingdom and it is not reasonably practicable to secure his attendance at the trial or to obtain his evidence in any other competent manner;
© is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken;
(d) having been authorised to do so by virtue of a ruling of the court in the proceedings that he is entitled to refuse to give evidence in connection with the subject matter of the statement on the grounds that such evidence might incriminate him, refuses to give such evidence; or

--------------------------------------------------------------------------------------

Would you put it past them to fly this old chestnut? icon_eek.gif
jimmy ferrari
I am not certain about all situations but was informed by a police officer that hearsay evidence is not allowed in English/Welsh courts at present but I did read in the new Criminal Justice Act 2003 that is going through at the moment that it will be allowed in the future.
DW190
QUOTE
The Act is designed to ensure that criminal trials are run more efficiently and to reduce the scope for abuse of the system. It will reform the rules on advance disclosure of evidence and will allow for judge-alone trial in cases involving threats and intimidation of juries, and paves the way for judge-alone trial in exceptionally long, complex serious fraud cases. It will ensure the wider involvement of the community as a whole by reforming rules on jury service. Rules on evidence will be changed to allow the use of previous convictions where relevant, and to allow the use of reported (hearsay) evidence where there is good reason why the original source cannot be present, or where the judge otherwise considers it would be appropriate. It will enable any witness to give evidence using live links. A right of appeal for the prosecution against judicial decisions to direct or order an acquittal before the jury has been asked to consider the evidence will be introduced to balance the defendant's right of appeal against both conviction and sentence. The Act will also make it possible in certain very serious cases for a retrial to take place despite an earlier acquittal if there is new and compelling evidence of an accused's guilt.


As was previously stated there must be good reason why and individual cannot be present to allow hearsay.
mb1rgw
QUOTE (jeffreyarcher)
What is "the usual stuff?" It is statements like that that get important details missed.


Sorry. There is a statement concerning the alleged driving offence (evidence that there was a reason to send out the NIP); a statement saying that the NIP (copy of 1st page of NIP only given, see below) was served on such-and-such a date at registered address; a statement from a DVLC guy saying I was the registered keeper, at my address, at the time; and:

QUOTE
I am a clerical assistant employed by Thames Valley Police at... My duties include the despatch of NIPs by 1st class post that have been generated by the computer system from information input by the Traffic Technology Team from processed film or video.

On the date printed overleaf I despatched by 1st class post, in a prepaid envelope, this notice, under s172 of the RTA 1988, to the addressee printed in the address box overleaf. The NIP was collected the same day from... by member of post office. The notice required the addressee to supply information as to the driver of the vehicle at the time of the alleged offence.

According to the FPSU computer system, no satisfactory information leading to the identification of the driver has been received in respect of this alleged offence. I can confirm [computer working OK]...


My query related to whether a statement by a clerical assistant about the contents of a computer system is in any way admissable as evidence as to the arrival or otherwise of information. Surely the statement should include info about how incoming post is processed, for instance?

In any case, quite apart from anything else, I think they are on the run. Only p1 of the NIP is shown. This says:

"you are required to provide the full name and address of the driver at the time of the alleged offence and to sign the response form where indicated"

and later:

"Under s172 of the RTA 1988 you are required to supply the information on page 3 of this notice within 28 days of this notice."

No copy of Page 3 (the response form) is included.

Questions, questions. Does this render the NIP inadmissable, as only a portion has been provided in evidence? Even if admissable, what is it evidence of? Can they successfully claim that a form was sent out?

robin
DW190
QUOTE
According to the FPSU computer system, no satisfactory information leading to the identification of the driver has been received in respect of this alleged offence. I can confirm [computer working OK]...


With the above statement and the lack of a copy of the unsigned part you sent back this statement is seriously flawed.

Have you got proof of posting the form back to them. The fact that they produce as an exibit the first page indicates they have received something back.

If they dont disclose the unsigned form they are dead.
andy_foster
QUOTE (DW190)
...The fact that they produce as an exibit the first page indicates they have received something back.


Would the first page not be the NIP, marked "Please retain for your records" ? This would be a copy of (part of) what was served on him, not what he had returned.

The fact that they used the phrase "no satisfactory information...has been received", rather than specifying whether an "unsatisfactory" response had been received would appear to indicate both the extreme arrogance of the police, and that their "evidence" is meaningless.

I'd suggest, rather than having the evidence dismissed, calling the "witness" so she can be asked simply "was a response received, yes or no?"
If they can't say whether a response was received, let alone why (if it was received) it was deemed unsatisfactory, surely they have no case.

Andy
cjm99
Everything you have posted, as far as I can see, does not indicate that the request for informaton, or more importantly the items disclosed, do not state that the request is made for and on behalf of the CoP.
Osgerby being the relevant authority. You seem to infer, that a copy of the NIP and or S172 form are not disclosed?

A point raised earlier, computer records are acceptable, but, for what?

If as is asserted, a form was sent out to the RK., this is probably acceptable computer info. but it says nothing as to the content of the form. The CPS still need to evidence that questions were asked, other wise, what response is required???

Chris
peteturbo
maybe a slight red herring, but;

QUOTE
The NIP was collected the same day from... by member of post office


Does this actuallu mean there is a post box in the station, or a postie comes specifically to the station? Otherwise how do they know this?

I'd like to call the postie as witness. Does he make a dedicated trip each and every day? does he sign for it? Or does a policeman go to the post office, in which case i want to see his notebook for that day.

I'm just wondering if there is a possible hole in the information trail in the points between the police system and the postal system. The law allows the police to rely absolutely on first class post, and the police system audits the preparation, but is there an exploitable gap in the middle?

Peteturbo
DW190
I think you will find that the Royal Mail send a van round to the CTO every weekday or every other weekday to collect and sign for the NIP's.

The CTO wil or should have a receipt from the postie who collected the mail stating how many pieces were collected.
Archie
Sorry to take so long to reply. Thank you all for comments:

i) Firstly this is an English case, not Scottish.

ii) As far as I am aware, the police/CPS do not have a copy of my unsigned form.

iii) I suggested the Mohindra defence to my solicitor (i.e. the request to provide a signature did not originate from the Chief Constable). My solicitor’s advice was not to run this defence, as the original letter accompanying my form was on a police letterhead, which he felt would satisfy the magistrates that the request was effectively from the Chief Constable.

iv) My solicitor is arguing that the evidence of the crown’s witness is inadmissible because it is based on computer records input by a colleague of the witness. English law only allows “hearsay” evidence if certain “exceptional” conditions are present. As has been noted, one of these is that the person from whom the evidence originates “is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken. “. In my case, the person is identifiable, but the police have made no effort to find them.

v) Jimmy’s comment may be pertinent to this case, that the new Criminal Justice Act 2003 that is going through at the moment will allow more hearsay evidence. Anyone know when this comes into effect?

QUOTE
I was in court last week on failure to provide details - having provided an unsigned form.

A nice lady from the police was called as a witness to tell the court that I had provided an unsigned form. However, in order to make this statement, she has to rely on computer records kept in the office, which were input by a colleague. The colleague who input the data has moved to a new job and there has been no apparent effort on behalf of the police to track her down in order to testify.

My solicitor is arguing that the witness's testimony is inadmissible, as it is "hearsay".

CPS and my solicitor had a long technical debate in court about the law relating to hearsay, quoting primary legislation and also case law. At the end of the debate, the Clerk to the Court, who seems very even-handed, felt unable to give advice to the magistrates. The case has therefore been adjourned so that everyone can do some more swotting up on the law.
Archie
Apologies if you've already read this on another thread, but I've been asked to repost on this thread for better continuity. I had the second round of my trial earlier this week. I'm fighting a S172 "failure to provide information", having provided an unsigned form.

1st trial hearing - Police witness called to tell mags I had failed to provide information. She did this by reference to computer records kept in the office, which were input by a colleague. Witness told the court that the colleague who input the data has moved to a new job and could not testify. My solicitor argued "hearsay". Case adjourned so that clerk can consider "hearsay" argument.

2nd hearing. CPS opens with the news that the input clerk DOES still work for the police after all and lays before us a witness statement from that person, which is inadmissible, because only provided on the day. (Furthermore, it contradicts the S9 statement from the orignal witness. Original police witness statement said I had not responded at all. Input clerk statement correctly states that I provided an unsigned form.) Case adjourned so that new witness can be called.

My solicitor was disappointed that mags agreed to another adjournment. I think I could be onto a loser now.........

Any ideas how to proceed?
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