Learning Outcomes
This article provides a comprehensive review of the rule against hearsay evidence in criminal proceedings, outlining not only the rationale for its general exclusion but also the detailed exceptions that permit its admission. Core outcomes include understanding the statutory and common law framework as codified primarily in the Criminal Justice Act 2003, precise identification of hearsay evidence, and recognition of relevant legal gateways for its admissibility. Emphasis is placed on both conceptual clarity—such as the ability to distinguish between statements tendered for their truth and those introduced for other purposes—as well as thorough knowledge of the practical procedures for admitting and excluding hearsay, including giving notice under the Criminal Procedure Rules. Analysis encompasses key statutory exceptions like statements by unavailable witnesses, business documents, and lesser-known common law exceptions such as res gestae and confessions.
The article further clarifies the role of the court's discretion in permitting hearsay in the interests of justice, the procedural and evidential safeguards to mitigate prejudice, and the relationship between hearsay provisions and defendant rights under Article 6 of the European Convention on Human Rights. Readers will thus be able to apply and critically assess the rules for admitting or excluding hearsay in realistic scenarios, addressing typical issues such as competing reliability, right to cross-examination, multiple hearsay, and evidential fairness.
SQE1 Syllabus
For SQE1, you are required to understand the framework for hearsay evidence in criminal trials under the Criminal Justice Act 2003 and preserved common law, with a focus on the following syllabus points:
- The concept of hearsay evidence and the historical and practical reasons for the rule excluding its admission in criminal trials.
- The statutory definition of hearsay and the circumstances in which an out-of-court statement may be tendered as evidence of the matters stated.
- The principal statutory gateways for admissibility of hearsay in criminal proceedings under the Criminal Justice Act 2003, specifically:
- Section 116: Admission of statements from unavailable witnesses due to death, unfitness, absence abroad, inability to be found, or fear.
- Section 117: Admission of statements contained in business and other regularly kept documents, where reliability safeguards are satisfied.
- Section 114(1)(d): Residual discretion to admit hearsay where it is in the interests of justice, including the need to consider the reliability, probative value, and alternative options for obtaining the evidence.
- The conditions and safeguards required for each statutory gateway, procedural notice requirements under the Criminal Procedure Rules, and how courts determine the admissibility of contested hearsay evidence.
- The preserved common law exceptions: res gestae, confessions, public documents and reputation.
- The restricted rules on multiple hearsay (information passed through more than one person) under s. 121 CJA 2003 and the means by which such evidence may nevertheless be admitted.
- The interplay of hearsay rules with fundamental trial rights, including the right to challenge evidence under Article 6 ECHR.
- The procedural distinctions between admission by agreement, challenges to hearsay, and situations where the party tendering the statement is required to provide proof of the relevant facts.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following best defines a hearsay statement in criminal proceedings?
- Any statement made outside of court.
- A statement made in court that repeats what someone else said.
- An out-of-court statement tendered as evidence of the truth of the matters stated within it.
- A written statement submitted as evidence instead of oral testimony.
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A witness gave a statement to the police but has since moved abroad permanently and refuses to return for the trial due to the cost and inconvenience. Under which specific ground in s 116(2) CJA 2003 might the prosecution seek to admit their statement?
- The witness is dead.
- The witness is unfit to attend.
- The witness is outside the UK and it is not reasonably practicable to secure their attendance.
- The witness cannot be found.
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A hospital's patient record, created by a nurse detailing treatment given, is sought to be admitted as evidence. Which statutory provision is most likely relevant to its admissibility?
- s 114(1)(d) CJA 2003 (Interests of Justice)
- s 116 CJA 2003 (Unavailable Witnesses)
- s 117 CJA 2003 (Business Documents)
- s 118 CJA 2003 (Common Law Exceptions)
Introduction
In criminal trials, the principle remains that the best evidence should be given orally and in court, enabling the fact-finder to see and hear the witness, and to assess their reliability through questioning and cross-examination. Out-of-court statements presented as evidence for the truth of their content are generally regarded as problematic because the person who made the statement cannot be interrogated in court, and the evidence is not subjected to the same level of scrutiny.
Nevertheless, there are circumstances in which it is either necessary, expedient, or just to permit hearsay evidence. These include situations where essential witnesses are unavailable, or where certain routine records carry sufficient reliability. The modern law, principally set out in the Criminal Justice Act 2003 (CJA 2003), undertakes to codify and rationalise the complex matrix of common law exceptions, statutory gateways, and judicial discretion which previously governed this area. The result is a predominantly exclusionary rule, capable of being relaxed through defined exceptions and subject to procedural controls that maintain fairness in the proceedings.
Key Term: Statement
Any representation of fact or opinion made by a person by whatever means; it includes a representation made in a sketch, photofit, or other pictorial form (CJA 2003, s 115(2)).Key Term: Hearsay
A statement not made in oral evidence in the proceedings that is relied on as evidence of any matter stated within it (CJA 2003, s 114(1)). The essential aspect is the purpose for which the statement is being tendered: if it is to prove the truth of the matter stated, it is hearsay.
The modern definition attaches particular importance to the intention of the person making the statement and the use for which it is introduced in evidence. If the statement is introduced to prove something other than its truth (such as the fact it was made, or for the fact it shows the state of mind of the maker), it will not necessarily fall within the definition of hearsay.
THE RULE AGAINST HEARSAY
Hearsay evidence is generally inadmissible in criminal proceedings. The exclusionary rule is based on concerns about reliability, as the original maker of the statement is not subjected to cross-examination, is not present to clarify ambiguities, and does not make the statement under oath. These factors raise doubts about the accuracy and completeness of the statement.
The principle of orality thus preserves the adversarial nature of criminal trials, upholds the opportunity for the opposing party to challenge the evidence, and supports the judge or jury in determining the truth. Departures from this rule are only permitted in circumstances that fall within defined statutory or common law exceptions, or where the parties agree or the interests of justice so require.
The policy speaks to fairness and due process, including the defendant's right under Article 6 of the European Convention on Human Rights (ECHR) to cross-examine witnesses against them. The CJA 2003 seeks to balance this right with the practical necessities of administering justice.
STATUTORY EXCEPTIONS UNDER CJA 2003
Section 114(1) of the CJA 2003 allows hearsay evidence to be admitted in criminal proceedings where:
- It is permitted by a statutory provision (including specific provisions such as ss 116, 117 or other enactments).
- It is admissible under a preserved common law exception (as set out in s 118 CJA 2003).
- All parties to the proceedings agree.
- The court permits it in the interests of justice.
These gateways provide a framework within which the general exclusionary rule is maintained, but flexibility is afforded to meet the practical needs of justice.
Unavailable Witnesses (s 116 CJA 2003)
A key gateway for admitting hearsay is where a statement was made by an identified person who is unavailable to give oral evidence at trial. Section 116 CJA 2003 sets out the criteria for admitting such statements:
- The maker of the statement must be identified to the court’s satisfaction.
- The oral evidence, if given, would be admissible.
- The party calling the evidence must prove one of five defined grounds of unavailability (s 116(2)):
- The witness is dead.
- The witness is unfit to testify due to physical or mental condition (supported by medical evidence).
- The witness is outside the United Kingdom and it is not reasonably practicable to secure their attendance (taking into account cost, time, importance of the evidence, potential for using video link, and so on).
- The witness cannot be found despite reasonable steps having been taken to locate them.
- The witness, through fear (broadly construed to include fear of harm to self or others, or fear of financial loss), does not give oral evidence and the court gives leave for the statement to be admitted. When fear is advanced, the court must consider, among other factors:
- The contents and importance of the statement.
- Any risk of unfairness to the accused.
- The need for additional precautions such as special measures (e.g., giving evidence via live link).
This exception is subject to additional safeguards. Evidence admitted under s 116 must relate to first-hand hearsay; multiple hearsay is only allowed within further restriction.
Key Term: Unavailable Witness
A witness who cannot give oral evidence in court due to one of the specific reasons outlined in s 116(2) CJA 2003 (dead, unfit, outside UK, cannot be found, fear).
It is important to note the approach to "unfit to be a witness": the threshold is not the same as the civil concept of capacity. The court will (typically) require medical or other expert evidence to confirm the witness’s inability to attend or give testimony.
Practical application of these criteria is often subject to judicial scrutiny, and the court will expect parties to consider all reasonable means for securing the attendance (including exceptions for vulnerable witnesses or special measures) before resorting to admitting hearsay.
Worked Example 1.1
Anna witnessed a robbery and provided a detailed statement to the police. A week before the trial, Anna suffered a severe stroke and her doctor certifies she is medically unfit to attend court or give evidence for the foreseeable future. The prosecution wishes to read her statement.
Answer:
Anna's statement is hearsay. It may be admissible under s 116 CJA 2003. Anna is identified, and her oral evidence would have been admissible. She is unavailable because she is unfit due to her bodily/mental condition (s 116(2)(b)), with sufficient medical evidence. Therefore, the statement is likely admissible.
Additional considerations under s 116(4) require the court to balance the interests of justice, especially where the unavailability is due to fear. The court must ensure that admitting the statement will not unfairly prejudice the defendant, considering the statement’s relevance, reliability, and the ability of the defence to challenge its accuracy.
Business and Other Documents (s 117 CJA 2003)
Section 117 addresses the admissibility of statements contained in documents generated or received in the routine course of business, profession, occupation, or public duty. This is especially significant for routine records, logs, and medical documentation whose reliability stems from the manner of their creation rather than the recall of a particular witness.
To be admissible under s 117, these conditions must be met:
- The oral evidence of the contents would be admissible if given.
- The document was created or received by a person in the course of a business, trade, profession, occupation, or official function (paid or unpaid).
- The "relevant person" who supplied the information had personal knowledge, or may reasonably be supposed to have had personal knowledge, of the matters described.
- If information passed through an intermediary or multiple intermediaries, each transmission must have been in the ordinary course of business.
Key Term: Business Document
A document 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 (CJA 2003, s 117(2)(a)).
Section 117 specifically addresses documents produced for the purposes of a criminal investigation or prosecution. Where a document was created solely for those purposes (e.g., a police witness statement), the statement is only admissible under s 117 if the maker is unavailable (within the meaning of s 116) or cannot reasonably recall the relevant matters (s 117(5)).
Section 117 contains special safeguards and the court retains the power to exclude business documents whose reliability appears to be questionable, or where potential unfairness arises from admitting the document without the live evidence of its maker.
Worked Example 1.2
A company's delivery records, maintained electronically by warehouse staff based on dispatch notes completed by drivers, show that a specific package was dispatched on Monday. In a trial for theft of the package, can the prosecution use the electronic record as evidence of dispatch?
Answer:
The electronic record is hearsay. It is likely admissible under s 117 CJA 2003. It is a business document created in the course of the company's business, entered by warehouse staff in the course of occupation. The dispatch notes were presumably completed by drivers with personal knowledge. If the chain of information meets circumstances required by s 117, and oral evidence would be admissible, the document is likely admissible.
The purpose of the statutory exception for business documents is to relieve the burden of bringing every record-making individual to court where records are routine, contemporaneous and reliable, and where few practical issues of cross-examination can arise.
PRESERVED COMMON LAW EXCEPTIONS (s 118 CJA 2003)
The CJA 2003 preserves certain longstanding common law exceptions to the hearsay rule, recognising that some categories of hearsay possess sufficient reliability to justify admissibility.
Res Gestae
This exception applies to spontaneous statements made during, or so closely connected to, an event in issue that the possibility of fabrication or distortion is negligible. Section 118 CJA 2003 confirms that such statements are admissible at common law.
Res gestae covers several categories of spontaneous utterance:
- Statements made in circumstances of such immediacy and excitement that the declarant’s mind was dominated by the event (such as a cry uttered during an attack, or immediately after).
- Statements accompanying an act to explain or qualify it (statements essential to the sense of the conduct).
- Statements reflecting the declarant’s contemporaneous physical sensation or mental state.
The threshold for res gestae is high: the judge must be satisfied that the event was so startling as to "dominate the thoughts" of the declarant, leaving no real opportunity for concoction.
Key Term: Res Gestae
Statements made spontaneously during or immediately after an event, considered part of the event itself and admitted due to their presumed reliability stemming from immediacy.
Worked Example 1.3
During a robbery, the victim shouts, "It’s Max! Max is mugging me!" immediately before collapsing. The victim soon after loses consciousness and cannot recall the events in court.
Answer:
The victim's statement is hearsay but falls within the res gestae exception. The statement was made in conditions of excitement, dominated by the event, with no time for deliberate distortion. Admissibility depends on the judge being satisfied that the circumstances precluded concoction.
Confessions
A confession by a party to the proceedings (normally the defendant), whether made to a person in authority or not, and whether orally, in writing or otherwise, is generally admissible as an exception to the hearsay rule, subject to key statutory safeguards under the Police and Criminal Evidence Act 1984 (PACE), ss 76 and 78, regarding oppression, unreliability, or unfairness. A "mixed statement" (containing both incriminating and exculpatory material) made by the defendant is equally covered.
Other preserved common law exceptions recognised by s 118 include:
- Evidence of public information (e.g., public registers, official documents).
- Evidence of reputation or character.
- Evidence of family tradition.
- Expert evidence drawing on the published work or data of others.
The significance of these exceptions is that they represent categories of evidence recognised, over time, as carrying sufficient reliability even absent live testimony.
OTHER GROUNDS FOR ADMISSION (s 114 CJA 2003)
Agreement of the Parties
Section 114(1)(c) CJA 2003 provides that hearsay may be admitted if all parties to the proceedings agree to its admission. This often applies in the context of undisputed statements or matters not contentious between prosecution and defence. The party seeking to rely on the evidence must ensure proper notice is served on the other party to safeguard the procedural fairness.
Interests of Justice
The court has a residual safeguard gateway under s 114(1)(d) CJA 2003, enabling hearsay to be admitted if the court is satisfied that it is in the interests of justice to do so. This is a flexible but cautiously exercised discretion, important for circumstances not anticipated by other gateways.
The statute requires the court, when deciding whether to exercise this discretion, to consider a set of non-exhaustive factors set out in s 114(2), such as:
- The probative value of the statement (i.e., its value in proving a matter in issue).
- Whether the matter can be established by other admissible evidence.
- The importance of the evidence in the context of the case.
- The circumstances and reliability of the making of the statement.
- The reliability of both the maker and the evidence of the making.
- Whether oral evidence could be given, and if not, why not.
- The difficulty for the defence in challenging the statement and the extent to which admission would prejudice them.
Judges are required to balance the need for fairness to the defendant with the interests of efficient justice. The exercise of this discretion is not intended to subvert or circumvent the other established gateways; it is a "safety valve" to prevent injustice should a strict application of the exclusionary rule cause a material injustice.
Worked Example 1.4
A witness to a violent fight leaves a brief, anonymous note at the scene with critical details but cannot be traced despite reasonable efforts. The contents of the note are the only confirmation of the defendant’s presence at the scene.
Answer:
The note is hearsay, and because the identity and unavailability of the author have not been established, it does not meet the s 116 exception. However, depending on the circumstances in which the note was made, the court might, if satisfied as to reliability and necessity (e.g., the incident log is contemporaneous, effort made to track down the author), admit it under s 114(1)(d) if it is in the interests of justice, subject to the s 114(2) factors and the overriding requirement not to prejudice a fair trial.
In all situations, the residual discretion aims to avoid the exclusion of key evidence where it would be contrary to the interests of justice, but it is never unconstrained. The admission of hearsay must always be weighed carefully against the defendant’s right to a fair trial (Article 6 ECHR).
Exam Warning
A frequent error is to rely solely upon the supposed reliability, necessity, or utility of hearsay evidence without fitting the facts to a specific statutory or common law exception. Never assume that mere necessity justifies hearsay: each gateway requires its own distinct conditions to be met. For instance, with s 116, ensure every element—including proof of the maker's unavailability for one of the five statutory reasons—is satisfied; with s 117, verify the personal knowledge of the maker and the ordinary course of business requirement; with s 114(1)(d), address all the s 114(2) factors and provide full reasoning.
MULTIPLE HEARSAY
Multiple hearsay arises where information is relayed via one or more intermediate persons (e.g., "B testifies that A told him what C said happened"). The general rule is that multiple hearsay is inadmissible unless one of a handful of specific gateways applies.
Section 121 CJA 2003 permits multiple hearsay only if one of the following tests is satisfied:
- The evidence is admissible under s 117 (business and other documents), s 119 (statements inconsistent with oral evidence), or s 120 (statements consistent with oral evidence).
- All parties to the proceedings agree to its admission.
- The court allows it in the interests of justice, applying s 114(1)(d) and having regard to the s 114(2) factors.
This tightens the safeguards against the potential for distortion as information passes through multiple hands. The court's focus remains on ensuring that only evidence with sufficient reliability and necessity is allowed.
PROCEDURAL REQUIREMENTS
The admissibility of hearsay is governed by both substantive rules and detailed procedures designed to safeguard due process. The core procedural rules are found in Part 20 of the Criminal Procedure Rules (CrimPR).
In cases where hearsay is sought to be admitted under s 114(1)(d), s 116, s 117(1)(c), or s 121, notice must be served on the court and all other parties. The notice must:
- Clearly identify the hearsay evidence relied on.
- State the avenue of admissibility relied upon (e.g., s 116 unavailability, s 117 business record).
- Summarise the grounds for relying on the exception.
- Explain how disputed facts will be proved.
- Appoint and communicate any contested issues.
Deadlines for service are strict: generally, 28 days from the plea in the magistrates' court, or 14 days in the Crown Court, unless the court grants an extension. Opposing parties have an established period to object via a counter-notice, and the court will generally hold a hearing to determine contested matters.
Procedural safeguards exist to protect the fairness of the trial and give the opposing party the fullest opportunity to challenge the substance and route of hearsay evidence. The court retains the power to exclude evidence where procedural non-compliance would render its admission unfair or prejudicial.
Hearsay evidence admitted without compliance with the CrimPR can be excluded, and failure to object does not automatically result in the evidence being admitted.
Key Term: Criminal Procedure Rules (CrimPR)
The body of procedural rules for criminal proceedings in England and Wales. Part 20 prescribes procedures for the introduction and challenge of hearsay evidence.
ADDITIONAL EXCLUSIONS AND SAFEGUARDS
It is notable that the court has further powers to exclude hearsay evidence, including where its admission would adversely affect the fairness of the proceedings. Under s 126 CJA 2003, the court may refuse to admit hearsay if its value is substantially outweighed by the risk of undue prejudice or confusion. In cases involving confession evidence (as an exception to hearsay), the court is under a duty (PACE 1984, ss 76 and 77) to exclude evidence where it was obtained through oppression, unreliability, or contrary to the right to a fair trial.
In every case, the judge’s primary role is to ensure that the admission of hearsay is compatible with the right to a fair trial pursuant to Article 6(3)(d) ECHR, which guarantees the right to confront witnesses against the accused.
Key Point Checklist
This article has covered the following key knowledge points:
- Hearsay is an out-of-court statement tendered to prove the truth of its contents and is generally inadmissible.
- The CJA 2003 provides the principal modern legal framework for the admission of hearsay in criminal cases.
- Section 116 allows for admission of statements from witnesses who are unavailable for one of five exhaustively defined reasons (dead, unfit, outside UK, not found, fear), subject to additional safeguards.
- Section 117 allows for admission of statements contained in business documents made in the ordinary course, subject to conditions on personal knowledge and reliability.
- Common law exceptions preserved by s 118 include res gestae, confessions, public records, reputation evidence, and statements forming part of family tradition or character.
- Hearsay may be admitted by agreement of all parties or under the court’s interests of justice discretion, guided by s 114(2) factors.
- Multiple hearsay is admissible only through restricted gateways, further protecting against cumulative unreliability.
- Procedural rules under CrimPR Part 20 specify notice requirements and objections when hearsay evidence is to be admitted.
- The court retains a further discretion under s 126 CJA 2003 to exclude evidence if its value is outweighed by prejudice or risk of misleading the jury.
- All evidential decisions must be guided by the overarching concern for fairness, particularly the defendant’s Article 6 ECHR rights.
Key Terms and Concepts
- Statement
- Hearsay
- Unavailable Witness
- Business Document
- Res Gestae
- Criminal Procedure Rules (CrimPR)