Hearsay

Over on Secret Barrister there is a superb post on hearsay evidence in criminal trials. This comes in the wake of media fury that Clayton Williams, convicted of the manslaughter of PC Dave Phillips but acquitted of his murder, allegedly signaled what could be interpreted as an intention to run over PC Phillips in the moments before he tragically killed the policeman. This of course would be relevant because, to establish murder a jury must be satisfied that the accused “intended to cause serious harm or death.”

The Secret Barrister comments:

After Williams was acquitted by the jury of murder, the jurors seemingly not satisfied that Williams drove deliberately at the officer, newspapers have reported that Williams’ co-accused, Philip Stuart, who was in the stolen car at the time, told police officers when he was interviewed that Williams had said “Watch this” before driving into PC Philips. The jury were not told about this during the trial.

Why? Is this not critical evidence of Williams’ intent? What went wrong?

In short, nothing. It’s simply because, in a trial of multiple defendants – let’s call them A and B – the law does not allow for statements made outside a courtroom by one co-defendant (B) to be admitted in evidence against the other (A). In law it amounts to hearsay, as B’s statement was not evidence given in court, and A has not had the opportunity to challenge B on its accuracy. Where A and B are both on trial, and where B repeats in his evidence on oath what he said to the police in his interview (e.g. “A drove at the officer and said “watch this””), then it becomes evidence and can be used against A. But where, as in this case, B gives the police an account, and then pleads guilty, he is not a party at trial and so what he said to the police in his interview cannot be used against A. Indeed, to avoid prejudice to A, the jury will not even hear about B’s interview.

Put that way there are good reasons why hearsay evidence is not allowed in criminal cases and perhaps the real question the press should be asking is why those prosecuting the case decided not to put forward evidence so that it could be tested and relied upon in court.

In an employment context however I find many employees, perhaps influenced by notions of the inadmissibility of hearsay evidence in criminal trials, will cry foul when hearsay is a part of their misconduct disciplinary. The simple fact, as Naomi Cunningham notes, is that there is no such rule in an employment tribunal context (or workplace investigation context). Hearsay evidence can be heard and is in fact frequently heard by tribunals.

Clearly however, hearsay evidence is problematic and poses risks for whether fair processes has been followed; and in my experience some employers, upon hearing that hearsay is not in principle excluded from consideration will use such evidence to ‘fill in the blanks in the case’. There are I think serious problems with this approach and employees should be sure to challenge any use of hearsay evidence in disciplinary proceedings.

This challenge is often based on two grounds. First and foremost hearsay evidence, like anonymous evidence, places an employee at a disadvantage in that the employee is not given adequate opportunity to challenge the evidence. Where evidence is of the hearsay variety there are serious possibilities in illegitimate ‘score settling’ motivations behind the evidence such that these are among the rare cases where requests to cross-examine the evidence giver should be made. Where that is refused, as it often will be, this may itself make any subsequent dismissal unfair (see TDG Chemical Ltd v Benton [2010]).

There is also an analogy here with the situation that is presented to employers in the case of anonymous evidence where employees should resist in that there is inadequate investigation of the motives of the anonymous allegation.

Core to this ground of complaint is the employer responsibility to conduct a fair investigation – any investigation that fails to adequately assess motive, put the ‘hearsay’ evidence to the employee or looks for corroborative or exculpatory evidence may give an employee an opportunity to pursue an unfair dismissal case on the basis that the investigation was not reasonable.

Second, in Snowball v Gardiner Merchant the EAT found that whilst hearsay evidence may be considered in tribunal proceedings it s often appropriate for tribunals to place limited weight on hearsay evidence that is not subject to cross-examination. A similar argument is appropriate in disciplinary proceedings where it can be argued that no or little weight should be placed on such evidence, especially if not backed up by the opportunity to cross examine that evidence or corroborative evidence. Where it is just hearsay evidence then it will often be argued that it is appropriate to favour the evidence of the employee or even, as set out in Roldan, to decline to come to a view and therefore give the benefit of the doubt to the employee.¹

 

Cases Referenced

Snowball v Gardiner Merchant [1987] ICR 719

Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721.

TDG Chemical Ltd v Benton [2010] UKEAT 0166_10_1009