Business and Other Documents
Blackstone’s Criminal Practice 2018/Part F Evidence/Section F17 Exceptions to the Rule against Hearsay (Excluding Confessions)/HEARSAY EXCEPTIONS: (1) HEARSAY ADMISSIBLE BY AGREEMENT, UNAVAILABLE WITNESSES AND BUSINESS DOCUMENTS/Business and Other Documents
Business and Other Documents
Criminal Justice Act 2003, s. 117
(1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if–
(a) oral evidence given in the proceedings would be admissible as evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.
(2) The requirements of this subsection are satisfied if–
(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.
(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.
(4) The additional requirements of subsection (5) must be satisfied if the statement–
(a) was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but
(b) was not obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003 or an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (which relate to overseas evidence).
(5) The requirements of this subsection are satisfied if–
(a) any of the five conditions mentioned in section 116(2) is satisfied (absence of relevant person etc), or
(b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).
(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection (7).
(7) The court may make a direction under this subsection if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of–
(a) its contents,
(b) the source of the information contained in it,
(c) the way in which or the circumstances in which the information was supplied or received, or
(d) the way in which or the circumstances in which the document concerned was created or received.
Business or Other Documents ‘Business records are made admissible … because, in the ordinary way, they are compiled by people who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable’ (the Court of Appeal in Horncastle  2 AC 373, in a judgment endorsed and regarded as complementary to the subsequent decision of the Supreme Court). Where the reliability of the statement is, contrary to normal expectation, doubtful (whether as a result of its contents, the source of the information, or concerns about the manner in which the document came into being), the court has a specific power under s. 117(7) to direct the exclusion of a document that is otherwise admissible under s. 117, whether tendered by the prosecution or the defence.
Section 117 of the CJA 2003 extends, as did its predecessor (s. 24 of the CJA 1998), to documents created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. Section 117 goes further in that it applies also to parts of documents so created, when the statement in issue is included in that part (for the meaning of ‘statement’ see s. 115(2) at F16.7) In Clowes  3 All ER 440, decided under the CJA 1988, s. 24, transcripts of interviews between the liquidators of companies and persons involved with the companies were held to have been ‘received’ by the liquidators in the course of their profession and as holders of the office of liquidator. Documents of a non-commercial nature such as a National Health Service hospital’s records are clearly admissible, as is the transcript of the evidence given by a witness at an earlier trial, which may be admitted at a retrial even though the court is plainly not a business in any sense (Lockley  2 Cr App R 554). Similarly, a police custody record was admitted under s. 24 in Hogan  Crim LR 349.
Because s. 117, like s. 24 before it, applies only to documentary evidence, the compiler of documents for use in criminal proceedings who leaves out important details of information he has gathered from others who do not give evidence cannot simply supplement his record with oral hearsay testimony (Hinds  Crim LR 528). Nor can an entry in a record be proved simply by calling someone who has checked the record (Motor Depot Ltd and Williams v Kingston upon Hull City Council (2013) 177 JP 41), a principle that appears to have been breached in Grazette v DPP  EWHC 3863 (Admin).
In Foxley  2 Cr App R 523, decided under the CJA 1988, s. 24, the documents in question were copies of credit notes and payments allegedly made by overseas companies to F, who was accused of receiving them corruptly. They had been obtained by letters of request to the authorities in the relevant countries. It was objected, inter alia, that no evidence was available from the creator as to whether these documents had come into existence in the course of a business etc., but it was held to be the intention of the statute that the court be allowed to draw relevant inferences from the documents themselves and from the way in which they had been placed before the court. Likewise, in O’Connor  EWCA Crim 2287, Belgian telephone records were procured through letters of request, but no accompanying statement as to the method of compilation was forthcoming. It was held that, to the extent that the documents may have been statements by a person (rather than non-hearsay mechanically produced evidence: see F16.11) it was open to the judge to draw inferences that their compilation had been in accordance with the provisions of s. 117. On the face of the documents, it could be inferred that the compiler had been either an employee of the phone provider or an officer of the Belgian police. Nothing in s. 117 required the production of an explanatory statement, though it may well often be desirable to have one. In Department of Environment, Food and Rural Affairs v Atkinson  EWHC 2028 (Admin), the label on a bottle was held to be admissible evidence that it contained a veterinary medicinal product, applying the same inference of reliability from the context. A case that may go too far in this context is Grazette v DPP  EWHC 3863 (Admin), where an inference was drawn as to the likelihood that the anonymous supplier of information to a Criminal Intelligence Report as to the ‘street name’ of the accused was correct because the address given for him in the same report was correct.
Personal Knowledge The ‘supplier’ of the information (who must have, etc., personal knowledge of the matters dealt with under the CJA 2003, s. 117(2)(b)) may also be the person who ‘creates’ the document under s. 117(2)(c) (s. 117(3)). Thus, for example, a note made by an operator working for a paging company that messages had been left for a customer would be admissible (as in Rock  Crim LR 843, decided under the 1988 Act) as a first-hand hearsay statement. Where such a document is received in evidence under s. 117, it is not necessary, as it is under s. 116 (see F17.8), to prove the unavailability of the maker of the statement.
Section 117 may also be invoked where several degrees of hearsay are involved. Provided each of the persons through whom the information was supplied received it in the course of a trade etc. (s. 117(2)(c)), the facts stated in the document are admissible. See, e.g., Wellington v DPP (2007) 171 JP 497 (extract from Police National Computer printout recording previous use of same alias by accused). In Maher v DPP (2006) 170 JP 441 a note which had been made (and lost) of a car number plate could not be adduced as second-hand evidence under s. 117 because a relevant passer-on of information had not received it in the course of their trade etc. The evidence was, however, admitted under s. 121(1)(c) as multiple hearsay, on the ground that the value of the evidence, taking into account its apparent reliability, was so high that the interests of justice required admissibility. This apparent incongruity can be explained on the basis that admissibility under s. 117 is ‘automatic’ (subject to the discretion in s. 117(6) and (7)), hence the need to demonstrate the degree of reliability inherent in the making of a commercial type of record. The ruling in favour of admissibility in Maher is based on the determination that the particular record, though not automatically admissible, was (on investigation of its specific properties) sufficiently reliable and important to be received. However, the process by which it was received ought to have included the determination that the passing-on of the information was itself hearsay admissible under s. 114(1)(d) (see F17.34 and F17.85).
A document produced by a computer without any human intervention cannot be said to contain information ‘supplied by a person’ with ‘personal knowledge’ (Pettigrew (1980) 71 Cr App R 39). However, as such a document does not constitute hearsay evidence, it will not matter that the conditions of the exception cannot be satisfied (Wood (1982) 76 Cr App R 23, considered at F16.12 et seq.).
The statement is admissible only as evidence of any matter stated of which ‘oral evidence given in the proceedings’ would be admissible, and this prevents the introduction of evidence that contravenes a rule of admissibility other than the hearsay rule, e.g., the rule against evidence of bad character, or evidence that goes only to credit where the witness’s answer is final, as in Foye (2013) 177 JP 449. It cannot be a valid objection to the admissibility of evidence under s. 117 that an intermediary through whom the information was supplied could not have given evidence of the fact without contravening the hearsay rule, otherwise s. 117 could not be made to apply to second-hand hearsay, and it is clearly meant to do so (see s. 121 at F17.84).
Unavailability of Maker of Statement Prepared for Purposes of Criminal Proceedings or Investigation It is not generally necessary to show grounds why the supplier of information contained in a statement should not be called before tendering his statement in evidence under the CJA 2003, s. 117. The only exceptions are those statements prepared for the purposes of pending or contemplated criminal proceedings, or of a criminal investigation (s. 117(4)(a)), which are not obtained pursuant to a request or order specified in s. 117(4)(b). Here, s. 117(5) applies, and it is necessary to establish either:
(a) one of the reasons for not calling the relevant person that apply in the case of a s. 116 statement (s. 117(5)(a): see F17.11 et seq.); or
(b) that the person cannot reasonably be expected (having regard to the time that has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement (s. 117(5)(b)).
In Minchin  EWCA Crim 2412, M was charged with conspiracy to pervert the course of justice for providing a false alibi for his son. The Court of Appeal accepted that a solicitor’s file note recording a meeting that had taken place with M and his son was inadmissible under s. 117 as it had been prepared for the purposes of criminal proceedings (s. 117(4)) and none of the statutory reasons for not calling the maker applied (s. 117(5)). However, the probative value of the note ultimately led to its admission under s. 114(1)(d) in the interests of justice (see F17.38).
In Humphris (2005) 169 JP 441, an attempt was made to use s. 117 where the prosecution sought to establish the modus operandi of previous admissible sexual offences committed by H. The details of the offences were recorded by police officers and other employees all acting under a duty, and the suggestion was that they had the necessary personal knowledge to be the ‘relevant person’ for the purposes of s. 117(2)(b) and (5). While the court found no difficulty in using s. 117 to establish the fact of conviction, the details of the method used were in each case dependent on information originally supplied by the complainant, who was thus the ‘relevant person’. The correct method of proceeding would therefore have been, as it was before the CJA 2003, to take a statement from the complainant. This might, depending on the circumstances, have been admissible under s. 116 (see F17.8). See, however, Ainscough (2006) 170 JP 517, drawing attention to the fact that a conviction might be complicated by the fact that an accused was sentenced on a different basis as a result of a plea, proffered and accepted by the court at the time. This would affect the fairness of admitting the original complainant’s evidence as hearsay and would raise numerous satellite issues about the detail of what occurred (see also F13.47).
In Bedi (1992) 95 Cr App R 21 the ‘lost and stolen’ reports maintained by a bank in respect of credit cards it had issued were held not to fall within the equivalent provisions of the CJA 1988. An examination of the reports disclosed that they were kept for the proper conduct of the bank’s business, not for criminal proceedings. In Hogan  Crim LR 349 it was assumed, surely rightly, that a police custody record fell within the equivalent provisions of the 1988 Act, and in West Midlands Probation Board v French  1 WLR 1715 it was held that the licence setting out the conditions of a prisoner’s release is not a document prepared for the purposes specified by s. 117(4)(a).
Section 117(5)(b) may apply where a witness is unable to recollect one part of a longer statement but is able to give evidence as to the rest (Carrington  Crim LR 438, in which the witness’s recollection was supplemented in relation to a car registration number that she had forgotten, in circumstances where she was not entitled to refresh her memory from the statement). See as to the evidence that may satisfy this condition, Crayden  2 All ER 700 at p. 608 (decided under the Criminal Evidence Act 1965) and Feest  Crim LR 766 (decided under the PACE 1984).
Competence The CJA 2003, s. 123 (see F17.8), which provides that only evidence from competent witnesses may be received, applies to s. 117 in the following way. Where any person who supplied or received relevant information, or who created or received the document or the part concerned, either lacked capacity or (if unidentifiable) cannot reasonably be assumed to have had capacity at the relevant time, the statement may not be admitted under s. 117 (s. 123(2)). This does not necessarily preclude its admission under the interests of justice exception in s. 114(1)(d), but it would be a rare case where this would be appropriate.