Anonymity and hearsay: Court of Appeal clarity

RCJ portrait 146x219The Court of Appeal has provided important guidance regarding the use and weight of anonymous hearsay evidence. Whilst the case relates to social housing litigation, the evidential principles and Court of Appeal clarity should also be of interest to those involved in civil litigation generally, writes Karl Anders.

Hearsay evidence is a statement, made otherwise than by a witness giving his own personal account, which is relied upon in court to prove the truth of the matters stated. Hearsay evidence may be first hand  (when a witness relates what he directly heard someone else say) or it may be second hand (or even more distant) (when the witness relates what he was told that someone else said).

It has long been recognised by the courts that there will be instances in which justice requires that hearsay evidence can be adduced. For example, a case where a person with information or knowledge which is crucial to the full and fair trial of a case can no longer be contacted or for some other important reason is not able or willing to appear in court, but where another person is able and willing to testify as to what the former has said. 

However, to avoid the obvious risks associated with a 'he said'/'she said' approach, English law imposes certain safeguards before hearsay evidence can be relied upon. In particular, section 4 of the Civil Evidence Act 1995 (CEA) requires the court to have regard to various factors when assessing the weight, if any, to be given to hearsay evidence.

In Boyd v Incommunities Limited [1] the Court of Appeal has provided guidance and clarity on the admissibility of anonymous hearsay evidence in civil litigation.

Facts

The appellant tenant (Boyd) appealed against a finding in a possession action brought against him by the respondent social housing landlord that he had been guilty of anti-social behaviour (a possession order had been made against Boyd partly because of the existence of rent arrears, but importantly because of a finding of anti-social behaviour on his part).

The first instance judge had relied upon anonymous hearsay evidence as proof of the anti-social behaviour. This was the witness statement of a Tenancy Enforcement Officer which referred to information that had been relayed to him by, amongst others, three people who were too frightened to be identified as giving evidence against Boyd due to fear of reprisals. 

The Tenancy Enforcement Officer explained in his witness statement that the three individuals had reported to him instances of Boyd intimidating residents in the area, begging for money, banging on doors at all hours, and shouting and screaming. The officer also stated that the individuals wished to support any action the court could take in keeping Boyd away from the accommodation and area, but that they were afraid of Boyd and believed him to be a dangerous man, and so were not willing to identify themselves in the proceedings.

Boyd argued before the Court of Appeal that the judge had failed to give proper regard to the safeguards required by section 4 of the CEA and that the anonymous hearsay evidence should not therefore be relied upon.

Decision

Upholding the judge's reliance upon the hearsay evidence, the Court of Appeal stated that:

  • the Moat Housing [2] case confirmed that the court should initially analyse direct oral evidence before moving on to absent and anonymous witnesses; but
  • it was well established by Moat and by the Solon [3] case that hearsay evidence is admissible and is governed by section 1 – 7 of the CEA and rules 33.1 – 33.5 of the Civil Procedure Rules;
  • section 4 (1) and (2) (a) – (f) of the CEA sets out the considerations relevant to the weighing of hearsay evidence;
  • whilst the first instance judgment did not expressly refer to section 4 of the CEA,  the judge  had in fact weighed the relevant considerations set out in that section which pertained to the facts of this case. For example, the judge had no doubt that the anonymous witnesses found Boyd's behaviour to be intimidating, hence their wish to remain unidentified was reasonable and was not an attempt to prevent proper evaluation of their evidence. In addition, the judge noted that the anonymous witnesses were from different households and that, whilst there was corroboration, there was no suggestion of collusion or collaboration.

Comment

Hearsay and anonymous evidence should be not be relied upon lightly. Seeking to adduce hearsay evidence introduces additional layers of complexity due to the additional procedural hurdles to be satisfied. In addition, hearsay is very rarely afforded the weight of direct evidence of named witnesses who attend trial.

However, there are cases in which hearsay evidence, and even anonymous evidence, is absolutely essential to the proper hearing and just outcome of a case. As has been established through case law, anonymous hearsay evidence is particularly important in cases where witnesses feel intimidated and are reluctant to have their identity revealed due to fear of reprisal.  

If hearsay evidence is to be adduced, the advice is straightforward: the criteria at section 4 of the CEA should be comprehensively considered and expressly addressed in the statement of the witness to ensure that the court can give due weight to the evidence.

Karl Anders is Head of Walker Morris' housing litigation team. He can be contacted on 0113 283 2631 or by This email address is being protected from spambots. You need JavaScript enabled to view it..

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[1] Boyd v Incommunities Limited [2013] EWCA Civ 756

[2] Moat Housing Group South Limited v Harris and Hartless [2005] EWCA Civ 287; [2006] QB 606

[3] Solon South West Housing Association Limited v James [2004] EWCA Civ 1847