Hearsay Question pt.2

The principle on which evidence of res gestae, including hearsay evidence, is admitted is that the words and events may be so closely inter-related that the truth can only be discovered when the words accompanying the events are disclosed. But it is not essential that the words should be absolutely contemporaneous with the events. What is essential is that there should be close association, and that the words sought to be proved by hearsay should be at least de recenti and not after an interval which would allow time for reflection and for concocting a story.  http://www.cps.gov.uk/legal/h_to_k/hearsay/

However, the soundness of this approach seems to be doubted in the recent case of Cinci v HM Advocate. There the complainer, on being discovered naked in a shower cubicle with the accused, stated that he had raped her. The trial judge was of the view that this statement was admissible as part of the res gestae, following the approach taken in O’Hara, but this was reversed on appeal. Lord Justice Clerk Gill stated that he was:

“…of the opinion that the words “He raped me” were not part of the res gestae. The res gestae principle is founded, at any rate on the older Scottish authorities, on the idea that the words spoken are part of the event itself.”

De recenti is well explained in Morton v HM Advocate

A statement made by an injured party de recenti, unless it can be brought within res gestae, is ordinarily inadmissible as hearsay only, but an exception is allowed in the case of sexual assaults on women and children. A statement of the injured party de recenti is nothing but the statement of the injured party, and it is not evidence of the fact complained of. It follows that for a de recenti statement to be admissible, its maker must testify. This was also illustrated with photo booth hire Glasgow

In Shaban Ahmed v HMA 2009,an alleged victim in rape case made de recenti remark to friend but denied doing so later at trial. On appeal, held remark admissible; no rule that the victim had to confirm making it in order for it to be admissible. The crucial thing was whether remark made, not whether alleged author of it agreed it was made.

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Hearsay Question pt.1

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Hearsay evidence was long rejected by the common law. Hearsay evidence is not the best evidence. The essence of the trial is orality, the witness present, on oath or affirmation, subject to cross-examination, displaying his demeanour. Hearsay evidence could be inaccurate, distorted, or fabricated, remain uncorrected, and mislead the jury or magistrates. The trial could be lengthened by irrelevant or unreliable evidence.

“Primary hearsay” is evidence of the fact that the statement by the other person was made, irrespective of its truth or falsehood.Evidence that a statement was made may be allowed, if relevant, for that limited purpose. The general rule of Common Law is that Hearsay evidence, inadmissible to prove factual content or veracity, but is admissible to prove that remark was made, Witnesses are confined to giving evidence of firsthand, personal perceptions, experience & knowledge.

The most comprehensive is Hearsay rule is;

“An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted”in R. v. Sharp

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Provision of services are possibly the most dynamic four freedoms from the Treaty of Rome due to the conception of what constitutes to being a service. The breadth of what the treaty article allows to be considered a service is why this area has been a victim of many debates in terms of case law development and legislative output. The courts have stated that the rights protected by Article 56 TFEU are actually wider than protection from discrimination on grounds of nationality residence. Article 56 is not solely concerned with economic activities, it actually expands into many fields such as music, sport and education, the list goes on.

Article 56 provides that: Restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of member states who are established in a MS other than that of the persons for whom the services are intended. The Europe parliament and council may extend the provisions to nationals of a third country who provided services and who are established within the Union.

Non Discrimination and Direct Effect – The rights created in Article 56 were originally understood in terms of the right of non-discrimination. Walrave and Koch –v- Association Union Cycliste Internationale [1974]. Two Dutch cyclists challenged the association’s rules that the ‘race pacemaker must have same nationality as the competitor’. AUCI argued: Art.56TFEU can only be invoked against M/S and public bodies, not sports associations. CJ: if so, this would obstruct FM – must be able to use Art.56 to challenge rules regulating employment and provision of services. Thus, Art.56 has horizontal direct effect

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