Hearsay Evidence Law: A Practical Guide to the CJA 2003, Exc...

Introduction

Hearsay concerns an out‑of‑court statement used to prove the truth of what it says. Because the person who made the statement is not in the witness box, the court cannot test their memory, perception or honesty through cross‑examination. For that reason, hearsay is generally excluded.

Modern law accepts that a blanket ban can be unfair where a witness cannot attend or where reliable documents are involved. The Criminal Justice Act 2003 (CJA 2003) reshaped the law in England and Wales and sets out when hearsay can be admitted, together with safeguards to protect fairness under Article 6 ECHR.

This guide explains the definition, the main statutory and common law routes for admission, the key safeguards, and leading cases such as R v Horncastle. You will also find practical steps for using or challenging hearsay, including res gestae statements (for example, 999 calls in domestic abuse cases).

What You’ll Learn

• What counts as hearsay under CJA 2003 ss114–115 (the “matter stated” test)
• The four admissibility gateways in s114(1)
• When a witness’s prior statement can be used because they are unavailable (s116)
• When business and other documents may be admitted (s117)
• Preserved common law exceptions such as res gestae (s118) and how they work
• How courts assess fairness, including the role of R v Horncastle and Article 6 ECHR
• Practical steps: notice, reliability, multiple hearsay, credibility (s124) and stopping a case (s125)
• How to apply the rules to common scenarios, including domestic abuse 999 calls

Core Concepts

What counts as hearsay (CJA 2003 ss114–115)

• A “statement” includes oral statements, written statements and hearsay within documents.
• It is hearsay if it is adduced “as evidence of any matter stated” and the maker is not giving it in oral evidence.
• “Matter stated” means the maker intended it to:
  • cause someone to believe the matter, or
  • cause someone to act (or not act) on the basis that the matter is true.

Practical effects:

• Implied assertions are generally not hearsay after the CJA 2003. If a drug buyer texts a number asking for “the usual,” that message is not intended to state a fact for belief; it can be non‑hearsay evidence pointing to drug dealing. See R v Twist [2011] EWCA Crim 1143.
• Statements used for a non‑truth purpose (for example, to show the effect on the listener, or that words were spoken) are not hearsay.
• Confessions and admissions are treated under preserved rules (see s118 and PACE 1984).

Tip: Ask two questions for every out‑of‑court statement: (1) Is it relied on for the truth of what it says? (2) Did the maker intend someone to believe or act on it? If either answer is “no,” it may not be hearsay.

The four gateways to admissibility (s114(1))

Hearsay is admissible only if one of these applies:

1. A statutory provision allows it

   • The CJA 2003 contains most of the criminal rules: ss116–121, 124–126.
   • Other statutes sometimes apply (for example, Civil Evidence Act 1995 in civil cases).

2. A preserved common law exception applies (s118)

   • Res gestae (spontaneous statements closely linked to the event)
   • Public information/reputation categories
   • Confessions and admissions
   • Statements in furtherance of a common enterprise
   • Expert material (limited preserved rule)

3. All parties agree to it

   • Express agreement can be strategic. Record the agreement and its terms.

4. The interests of justice (s114(1)(d))

   • A flexible safety valve. The court weighs relevance, reliability and fairness using the s114(2) factors (including how much can be tested, motives to misrepresent, and whether other evidence supports it).
   • This is not a shortcut where a specific route (e.g., s116 or s117) is available but unmet.

Key statutory exceptions and built‑in safeguards

Witness unavailable (s116)

• Prior statements may be admitted where the maker cannot testify because of:
  • death, physical or mental condition, being outside the UK and it is not reasonably practicable to secure attendance, cannot be found, or fear.
• The party tendering hearsay must show reasonable steps to secure attendance (except fear, which has extra conditions).
• The statement must be reliable: the court will consider circumstances of making, corroboration, and whether special measures might have allowed live evidence.

Business and other documents (s117)

• Allows documentary hearsay if:
  • the document was created or received in the course of a trade, business, profession or public office,
  • by a person with (or reasonably assumed to have) personal knowledge of the matters stated,
  • and the supplier of information is identified or shown to be reliable.
• Extra caution applies to multiple hearsay within documents.

Previous statements of a witness (ss119–120)

• If a witness gives evidence but has previously made a statement:
  • s119: a previous inconsistent statement is evidence of what it says, not just of credibility.
  • s120: certain previous consistent statements can be evidence of what they say (e.g., identification, recent complaint, memory refreshing).

Multiple hearsay (s121)

• Further controls apply where a statement contains another hearsay statement. An admissible route is still required for each layer, or the court must be satisfied that admitting it is justified.

Credibility of an absent maker (s124)

• If hearsay is admitted and the maker does not testify, the other party may adduce material that could have been used to challenge credibility, including previous convictions, bad character or bias.

Stopping the case and exclusion (ss125–126)

• s125: if the case against the defendant is “based wholly or partly” on hearsay and it is so weak that a conviction would be unsafe, the judge must stop the case.
• s126: the court may exclude hearsay if its value is substantially outweighed by the risk it would cause undue waste of time.
• s78 PACE 1984 remains available to exclude unfair evidence.

Notice and procedure

• The Criminal Procedure Rules require notice when a party plans to rely on hearsay, with reasons and material supporting reliability. Expect timetables and consequences for late notice.

Key Examples or Case Studies

R v Horncastle [2009] UKSC 14

• Context: Whether convictions based significantly on hearsay breach Article 6 ECHR.
• Point: The Supreme Court held the CJA 2003 has sufficient safeguards. There is no automatic breach where hearsay is “sole or decisive” if robust protections exist (e.g., s124, s125, judicial warnings).
• Use: Courts focus on reliability and counterbalancing measures rather than a strict prohibition.

Al‑Khawaja and Tahery v United Kingdom (ECtHR, 2011)

• Context: Strasbourg examined “sole or decisive” hearsay.
• Point: The Grand Chamber clarified that hearsay can be compatible with Article 6 if there are strong counterbalancing factors and the trial is fair overall.
• Use: Aligns with Horncastle’s emphasis on safeguards and case‑by‑case analysis.

R v Riat and others [2012] EWCA Crim 1509

• Context: The Court of Appeal provided guidance on using s114(1)(d) (interests of justice) and on reliability assessments.
• Point: Do not use s114(1)(d) to bypass ss116–117 where they could be met. Focus on reliability features: contemporaneity, corroboration, motive, ability to challenge, and supporting material.
• Use: A checklist approach to reliability and necessity.

R v Andrews [1987] AC 281 (res gestae)

• Context: A victim identified the assailant during the immediate aftermath of an attack.
• Point: Res gestae applies where the maker was so dominated by the event that fabrication is unlikely; the statement must be spontaneous and closely connected to the event.
• Use: Often relevant to 999 calls and on‑scene utterances in violent or domestic incidents.

R v Twist [2011] EWCA Crim 1143 (implied assertions)

• Context: Messages suggesting drug dealing were relied upon.
• Point: Not hearsay where the maker did not intend to assert a fact for someone to believe (s115). The court must identify the asserted “matter” precisely.
• Use: Helps distinguish non‑hearsay uses of words and communications.

Practical Applications

For prosecutors

• Map the route early:
  • If a witness cannot attend, consider s116 and document your efforts to secure attendance.
  • For records, consider s117; show how, when and by whom the record was made.
  • If neither applies, assess s114(1)(d) with a detailed reliability analysis under s114(2).
• Serve notice on time with the statement, context, and reasons why live evidence is not reasonably practicable.
• Anticipate challenges: gather corroboration (CCTV, phone data, forensics), identify why fabrication is unlikely, and address any motive to lie.
• Jury directions: invite tailored directions on the treatment of hearsay and the limits on weight.

For defence

• Challenge necessity and reliability:
  • Has the Crown truly exhausted routes to secure attendance (s116)? Are there practical steps (witness summons, live link) that were not tried?
  • Is the statement created in neutral circumstances or is there evidence of bias?
  • Are there inconsistencies or gaps that would have been explored in cross‑examination?
• Use safeguards:
  • s124: seek to admit material going to the absent maker’s credibility (previous convictions, dishonesty, bias).
  • s125: invite the judge to stop the case if the hearsay is weak and central to the prosecution.
  • s78 PACE: exclude where admission would be unfair.
• Multiple hearsay: insist on compliance with s121 and proof of each layer’s reliability.

Res gestae in domestic abuse cases

• What to check:
  • Timing: statements during the incident or immediately after?
  • Dominance of events: was the caller distressed, still under the pressure of the incident?
  • Content: spontaneous detail rather than reflective narrative?
  • Corroboration: injuries, scene disturbance, independent witness, call metadata.
• Prepare to explain why the circumstances leave little room for concoction, and address any delay or calm demeanour which may weaken res gestae.

Documents and digital material

• Establish the creation process: who made it, when, and in what capacity (s117).
• Identify the original data source, system reliability, and audit trails.
• Consider whether the statements within are assertions intended to be believed; if not, they may fall outside hearsay.

Procedure and timing

• Comply with Criminal Procedure Rules notice requirements. If late, provide reasons and propose remedies (e.g., adjournment, disclosure of background material).
• Seek directions on special measures or live link if that could avoid hearsay.

Summary Checklist

• Confirm it is truly hearsay: is it relied on for the truth of a matter stated with intent for belief or action (ss114–115)?
• Select the correct gateway: statutory (ss116–121), preserved common law (s118), agreement, or interests of justice (s114(1)(d)).
• For s116, document attempts to secure attendance and the reason for unavailability.
• For s117, prove the document’s business/public nature, knowledge of the maker, and reliability of suppliers of information.
• Address multiple hearsay (s121) and identify each layer.
• Prepare reliability material: contemporaneity, corroboration, absence of motive, consistency, and context.
• Anticipate fairness: s124 credibility challenges; s125 stop the case; s126 exclusion; s78 PACE.
• Serve or respond to hearsay notices on time with supporting material.
• For res gestae, show spontaneity and the overpowering effect of events; handle any delays or reflective account.
• Request clear judicial directions on the limited weight and proper use of hearsay.

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