Hearsay

The admissibility of hearsay evidence in criminal proceedings is set out in sections 114 - 136 of
Part II Criminal Justice Act 2003 and applies to all criminal proceedings begun on or after 4th
April 2005 (section 141 Criminal Justice Act 2003).  

Definition of Hearsay

"Hearsay" in criminal proceedings is "a statement not made in oral evidence in the proceedings
that is evidence of any matter stated" (section 114 (1) Criminal Justice Act 2003).

Definition of Criminal Proceedings

"Criminal proceedings" means "criminal proceedings in relation to which the strict rules of
evidence" apply (section 134 Criminal Justice Act 2003), and includes:

 A trial or Newton hearing (R v Bradley [2005] EWCA Crim 20); 

 A preparatory hearing, because when such a hearing is ordered, "the trial begins with that
hearing" (section 30 Criminal Procedure and Investigation Act 1996 and R v H [2006] 1
Cr. App. R 4); 
 A hearing pursuant to section 4A Criminal Procedure (Insanity) Act 1964 to determine
whether the defendant did the act or made the omission charged (R v Chal [2007] EWCA
Crim 2647); 
 Committal proceedings (CPS v City of London Magistrates' Court [2006] EWHC 1153
(Admin).

Definition of Statement

A 'statement' is defined as "any representation of fact or opinion made by a person by whatever

means"; and it includes a representation made in a sketch, photo fit or other pictorial form.

Matter stated: implied insertions

A 'matter stated' is one where the purpose or one of the purposes of the person making the
statement appears to have been to cause another person to believe the matter or to cause another
person to act or a machine to operate on the basis that the matter is as stated  (section 115).

The effect of this definition of statement is to enable evidence to be admitted of 'implied

assertions'. This reverses the decision made in R v Kearley (1992) 2 AC 228 in which police
answered telephone calls and personal calls to the defendant's home from people asking about
drugs that the defendant had for sale. The prosecution wished to adduce the evidence to prove
that the intended recipient of the calls was a dealer in drugs, without evidence from the callers
themselves. The House of Lords decided that, as evidence of the fact that the defendant dealt in
drugs, the caller's words were hearsay and thus inadmissible.
The callers' words do not fall within the definition of being a 'matter stated' because the purpose
of the calls was not to cause another person to believe that the recipient of the call was a drug
dealer but simply to request drugs. (R v Chrysostomou [2010] EWCA Crim 1403, R v MK [2007]
EWCA Crim 310 following R v Singh [2006] EWCA Crim 660, that mobile phone numbers
stored on a telephone are not a "matter stated" within section 115 CJA 2003, but implied
assertions, which since they were no longer hearsay were admissible.) The messages did not
amount to or contain any statement that he was a drug dealer Even if they could be said to
amount to an implied assertion that he was, the purpose of the sender did not include causing the
recipient or anyone else to believe that he was. Further the messages justified the conclusion that
there was an existing relationship of buyer and seller between the sender and the defendant. That
was a relevant matter; indeed the prime issue in the case was whether he was or was not.
Accordingly they were rightly admitted. (R v Twist [2011] EWCA Crim 1143).

In R v Twist and Others [2011] EWCA Crim 1143, the Court of Appeal strongly recommended
avoidance of the difficult concept of the "implied assertion" because the CJA 2003 focuses on
the 'matter stated', which it is sought to prove and suggested the following approach when
considering whether the hearsay rules applied:

(i) identify what relevant fact (matter) it is sought to prove;

(ii) ask whether there is a statement of that matter in the communication. If no, then no question
of hearsay arises (whatever other matters may be contained in the communication);
(iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose)
of the maker of the communication that the recipient, or any other person, should believe that
matter or act upon it as true ? If yes, it is hearsay. If no, it is not.

The answers to these questions will be case-sensitive. The same communication may sometimes
be hearsay and sometimes not, depending on the matter for which it is relied upon and the fact
which it is sought to prove.

Statutory categories of admissibility

Hearsay evidence (as defined above) is admissible in criminal proceedings only if:

 The 2003 Act or any other statutory provision makes it admissible - Section 114(1)(a); 
 Any rule of law preserved by section 118 makes it admissible (see below) - Section
114(1)(b); 
 All parties to the proceedings agree to it being admissible Section 114(1)(c); or 
 The court is satisfied that it is in the interests of justice for it to be admissible - Section
114(1)(d).

In exercising the discretion under Section 114(1)(d) the court must have regard to the following
(and any others it considers relevant):

 How much probative value the statement has (assuming it to be true) in relation to a
matter in issue in the proceedings, or how valuable it is for the understanding of other
evidence in the case; 
  What other evidence has been, or can be, given on the matter or evidence mentioned
above; 
 How important the matter or evidence mentioned is in the context of the case as a whole; 
 The circumstances in which the statement was made;
 How reliable the maker of the statement appears to be;
 How reliable the evidence of the making of the statement appears to be;
 Whether oral evidence of the matter stated can be given and, if not, why it cannot;
 The amount of difficulty involved in challenging the statement;
 The extent to which that difficulty would be likely to prejudice the party facing it.

Section 114(1)(d) will be considered only in cases where admissibility under the other statutory
provisions and the retained common law rules is not allowed.

The test for admissibility is "interests of justice".

The courts have already indicated a willingness to use Section 114(1)(d). For example in R v
Xhabri [2006] 1 Cr. App. R. 26 the Court of Appeal, when considering an application to admit
the previous complaint of a rape victim under Section 120 (see below) stated that even if the
previous complaint fell outside the strict construction of Section 120 they would admit the
evidence under Section 114(1)(d).

Cases where a witness is unavailable

Under section 116 of the Act: 

 The statement may be oral. 

 In the case of fear, the statement need not have been made to a person in authority. 
 In relation to unfitness, the unfitness is in relation to being a witness as opposed to
attending as a witness. 
 Where a witness does give evidence, but through fear does not cover the relevant matter
that is contained in a statement, this matter may be admissible. 
 There is automatic admissibility of a statement made by an identifiable person of
evidence that would be admissible if that person were available to give oral evidence but
are unable to do so because either: 
o The person is dead (section 116(2)(a));
o The person is unfit to be a witness because of their bodily or mental condition
(section 116(2)(b)); 
o The person is outside the United Kingdom and it is not reasonably practicable to
secure his attendance (section 116(2)); or 
o The person cannot be found although such steps as it is reasonably practicable to
take to find him have been taken (section 116(2)(d)).

There is a limited form of admissibility if the reason for non-availability to give oral evidence is
through fear (section 116(2)(e)).
In cases where the witness does not give oral evidence through fear (or does not continue to give
such evidence), leave of the court is required.

The 2003 Act guides the court on the exercise of this discretion by requiring the court to consider
that the statement ought to be admitted in the interests of justice, having regard to a number of
factors listed at subsections 116(4)(a) - (d).

The person making the statement must be identified to the court's satisfaction - section 116(1)
(b). Thus the statement of an unidentified passer by cannot be introduced under this section. (See
below for res gestae provisions, which may assist in these circumstances and also consider
(section 114(1)(d)).

The 2003 Act gives 'fear' a wide definition and it will include fear of the death or injury of
another person or of financial loss (section 116(3)).

Any person who by himself or through his agent causes the unavailability of the witness cannot
rely on the provisions of the Act to produce that person's statement (section 116(5)).

It is possible to challenge the credibility of a witness whose statement is received in evidence

(section 124).

Cases involving business and other documents

The Act deals differently with statements contained in general business documents and
statements made in contemplation of criminal proceedings.

Generally a statement contained in a document is admissible of any matter stated if: 

 Oral evidence would be admissible as evidence of the matter; 

 The document or the part containing the statement was 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; 
 The person who supplied the information contained in the statement (the relevant person)
had or may reasonably be supposed to have had personal knowledge of the matters dealt
with; and 
 Each person (if any) through whom the information was supplied from the relevant
person to the person creating or receiving the information also received the information
in the course of a trade, business, profession or other occupation, or as the holder of a
paid or unpaid office (section 117(2)).

Documents admissible under these provisions will be wide ranging and include company
correspondence, hospital records and a note made by an operator working for a paging company
that messages have been left for a customer (Rock [1994] Crim LR 843).

In the case of statements prepared for the purposes of pending or contemplated criminal
proceedings, or for a criminal investigation (other than a request under section 7 of the Crime
(International Co-operation) Act 2003 - relating to overseas evidence, usually obtained pursuant
to a letter of request) then one of the five conditions in section 116(2) must also be satisfied (see
above), or the relevant person cannot reasonably be expected to have any recollection of the
matters dealt with in the statement (having regard to the length of time since he supplied the
information and all other circumstances) (section 117(5)).

Documents where these additional requirements must be met will include statements of fraud
investigators and police officer's notes. However, it may be that the information upon which the
fraud investigator bases his statement will be admissible, as much of that information may be
contained in business documents admissible under section 117(2).

The person supplying the information is the relevant person (section 117(2)(b)). therefore, the
decision in Bedi [1992] 95 Cr. App. R. 21, where it was accepted that reports of the loss or theft
of credit cards compiled by a bank employee from information supplied by the owners of the
cards were 'made' by the employee rather than by the owners of the cards, is reversed. It is now
clear that the maker of the statement is the owner of the cards.

Although admissibility is generally automatic, there is limited discretion given to the court to
exclude evidence if satisfied that the statement's reliability is doubtful in view of: 

 Its contents; 
 The source of the information contained in it; 
 The way in which or the circumstances in which the information was supplied or
received; or 
 The way in which or the circumstances in which the document concerned was created or
received (section 117(7)).

This provision is of particular importance to the prosecution as it is the only way of challenging
the admissibility of business and other documents tendered by the defence. The test is in favour
of admissibility rather than in favour of exclusion.

Common Law categories of admissibility

Section 118 of the 2003 Act specifically preserves the following common law rules:

 Published works dealing with matters of a public nature, public documents, public
records and the rule permitting evidence of a person's age or date or place of birth to be in
hearsay form;
 Reputation as to character; reputation or family tradition as proof of marriage, a public or
general right or the identity of any person or thing;
 Res gestae (if the statement was made by a person so emotionally overpowered by an
event that the possibility of concoction or distortion can be disregarded, the statement
accompanied an act which can be properly evaluated as evidence only if considered in
conjunction with the statement, or the statement relates to a physical or a mental state
such as intention or emotion);
 Confessions and mixed statements;
  Admissions by agents. R (on the application of Firth) v Epping Magistrates' Court [2011]
EWHC 211 Admin is authority that assertions made during the case management process
can be admissible in evidence.  However, it will be rare for those statements to be
admissible in evidence against the defendant if the letter and spirit of the  Criminal
Procedure Rules are being followed. (R v Newell [2012] EWCA Crim 650).
 Common enterprise (declarations of a conspirator) and expert evidence (where an expert
witness may draw on the body of expertise relevant to his field).

Inconsistent and other previous statements of witnesses

The 2003 Act also deals with previous statements of witnesses.

Inconsistent statements must still be admitted or proved in accordance with the Criminal
Procedure Act 1865. (The CPA 1865 requires that any inconsistent or former statement is
mentioned to the witness and he must be asked whether or not he made such a statement before
proof of the making of the statement is given). Once the statement is admitted it becomes
evidence of the truth of matters stated in it if oral evidence of that matter would be admissible
(section 11).

R v Joyce [2005] EWCA 1785 provides an example of the use of section 119. In Joyce the
defendant was positively identified by several witnesses who made detailed statements setting
out the certainty of their identification. At trial the witnesses all claimed that they were now
uncertain as to their identification, contrary to their previous statements. The clear inference was
that the witnesses had been put under pressure to change their evidence. The judge admitted the
previous statements as evidence of the original identifications and the jury convicted on the basis
that these statements were true.

Other previous statements, once admitted, become evidence of truth. Statements under this
provision require the witness to be called to give evidence (section 120(1)).

If a previous statement is admitted to rebut a suggestion that his evidence has been fabricated,
the status of the evidence is that it is admissible of any matter stated of which oral evidence
would be admissible. Thus the whole statement becomes evidence of truth of statements
contained in it and not just as evidence of credibility (section 120(2)).

A statement used to refresh memory while giving evidence, on which the witness is cross-
examined, and which as a consequence is admitted in evidence, becomes evidence of truth
(section 120(3)).

A statement is admissible if whilst giving evidence the witness indicates that to the best of his
belief he made the statement and that to the best of his belief it states the truth and one of the
following three conditions apply:

1. The statement identifies or describes a person, object or place (section 120(5)); or

2. The statement was made when matters were fresh in his memory but he does not and cannot
reasonably be expected to remember them well enough to give oral evidence of them in the
proceedings (section 120(6)); or
3. All of the following are satisfied:

 The witness claims to be a person against whom an offence has been committed;
 The offence is one to which the proceedings relate;
 The statement consists of a complaint made by the witness about a conduct which
would constitute the offence or part of it;
 The complaint was made as soon as could reasonably be expected;
 The complaint was not made as a result of a threat or promise; and
 Before the statement is adduced the witness gives oral evidence in connection
with the subject matter (section 120(7)).

An effect of these provisions is that evidence of recent complaint is not automatically admissible.
If the complaint is delayed then it may not be admissible at all: in such circumstances, it may be
appropriate to consider admissibility under section 114(1)(d). In R v Openshaw [2006] 2 Cr.
App. R. 27 the court addressed the question of whether the complaint was made "as soon as
could reasonably be expected after the alleged conduct". It depended on the context of the case
and the person to whom it is made: a complaint made four months later was admitted.

Section 139 the Act 2003, provides that a witness may refresh his memory from a document
made or verified by him at an earlier time. The conditions for refreshing memory are only that
the witness states in his oral evidence that the document records his recollection of the matter at
that earlier time and that his recollection at that time is likely to have been significantly better at
that time than when he is giving his evidence. The provision also applies to a transcript of a
sound recording. Sound recording is not defined in this part of the Act. It is submitted that it
would apply to the sound recording contained in a video or DVD.

The provisions in section 120 may also be of use when dealing with reluctant and hostile
witnesses. It will still be necessary to show that the witness is hostile but once that is done all
that is then required is for the witness to confirm any previous statement.

Multiple Hearsay

Multiple hearsay refers to the situation where information is relayed through more than one
person before it is recorded.

Multiple hearsay is only admissible if: 

 Either of the statements is admissible under section 117 (business documents), section
119 (inconsistent statements) or section 120 (other previous statement); or 
 All parties agree; or 
 The court uses its discretion to admit under section 121.

Discretion under section 121 is framed differently to the overall discretion of the court and
requires the court to be satisfied that the value of the evidence, taking into account how reliable
the statements appear to be, is so high that the interests of justice require the later statement to be
admissible for that purpose.

It is submitted that the discretion in section 121 is to be viewed as a higher test than the
discretion in section 114(1)(d). This is because multiple hearsay is more likely to be unreliable.
However, there may still be circumstances where it can be reliable.

Documents produced as exhibits

Copies of documents or statements admitted under section 119 or section 120, which are
exhibited, should not normally go out with the jury unless the court so directs in the interests of
justice or all parties agree (section 122).

Capability to make a statement

The witness making any statement which is admissible by reason of sections 116,117,119 or 120
must have the capability to make the statement, i.e. he must be capable of understanding the
questions put to him about matters stated and giving answers which can be understood (section
123).

Credibility

The credibility of any witness who does not give evidence can be challenged by admitting
evidence relevant to credibility as if the witness were giving the evidence in person (section
124(2)). Another party may be permitted to lead additional evidence to deny or answer any
allegation made (section 124(3)).

Stopping the case where evidence is unconvincing

In a trial before judge and jury the judge has the power to direct an acquittal or discharge the jury
if after the close of the prosecution case he considers that the case is based wholly or partly on a
hearsay statement and that statement is so unconvincing that, considering its importance to the
case against the defendant, his conviction would be unsafe (section 125). This provision only
applies to jury trials on the basis that in these circumstances Magistrates would be bound to
acquit.

General discretion to exclude evidence

The court is given a general discretion to refuse to admit hearsay evidence under the Act if
satisfied that the case for excluding the statement, taking account of the danger that to admit it
would result in undue waste of time, substantially outweighs the case for admitting it (section
126(1)).

The Act also specifically preserves the power of the court to exclude prosecution evidence under
section 78 of the Police and Criminal Evidence Act 1984 and any other power to exclude
evidence at its discretion (section 126(2)). It should be noted that section 78 relates only to the
exclusion of prosecution evidence and the common law rules refer to exclusion if it is necessary
to secure a fair trial for the accused. It is submitted that the only discretion to exclude defence
evidence is that contained in section 126.

Expert evidence: preparatory work

Section 127 creates an exception to the hearsay rule for information relied on by an expert,
subject to the court's discretion to require attendance of the relevant witness. A statement
prepared for the purposes of criminal proceedings made by a person having personal knowledge
of any matter stated can be relied upon by an expert to base an opinion on it.

It is a requirement that notice be given to the other party that the expert will be basing an opinion
or inference on the statement. The notice must provide the name of the person making the
statement and the nature of the matters contained in it.

Confessions

Section 128 of the 2003 Act inserts section 76A into the Police and Criminal Evidence Act 1984.
This enables a defendant to introduce a confession made by a co-defendant subject to his proving
(on the balance of probabilities) that the confession was not made by oppression or in
circumstances likely to render it unreliable.

Facts discovered as a result of a confession will still be admissible even if the confession is
excluded.

Representations other than by a person

A statement made by a machine (e.g. a computer), which relies on information supplied by a

person, is only admissible to the extent that the information provided was accurate: section
129(1).

There is a presumption that a mechanical device has been properly set or calibrated: section
129(2).

Evidence at retrial

The Criminal Appeal Act 1968 is amended by section 131, so that if evidence was given orally in
a trial it must be given orally at any retrial, unless all parties agree, or a witness is unavailable in
accordance with section 116, or unavailable for other reasons and the court admits it under
section 114(1)(d).

Policy and Practice

The Criminal Justice Act 2003 moves away from the strict common law rule against the
admission of hearsay evidence in criminal proceedings. The current policy is more flexible and
promotes the inclusion of relevant hearsay evidence, on the basis that justice is not served if
important information is excluded for no good reason. The weight to be attached to hearsay
evidence is a matter for the jury or magistrates' court.

Article 6(3) (d) of the European Convention on Human Rights states that a person charged with a
criminal offence has a right "to examine or have examined witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him".

In Al-Khawaja and Tahery v UK (judgment given 15 December 2011) the European Court of
Human Rights, sitting as a Grand Chamber held that a conviction based solely or decisively on
evidence adduced from an absent witness does not automatically amount to a breach of the
Convention. However, such cases must be subject to "the most searching scrutiny." The question
for the court is whether there are sufficient counterbalancing factors in place, including measures
that permit a fair and proper assessment of the reliability of that evidence to take place. The
safeguards contained in the Criminal Justice Act 2003, supported by those in section 78 of the
Police and Criminal Evidence Act 1984 and the common law are in principle strong safeguards
designed to ensure fairness. If trial courts apply these properly and have regard to this Grand
Chamber judgment and the decision of the Supreme Court in Horncastle, trials will be fair.

Proof

The hearsay provisions apply equally to the defence as to the prosecution, with the added
safeguard for the defendant that any matters requiring proof must be proved to the criminal
standard by the prosecution and on a balance of probabilities by the defence.

Statements in documents can be proved by producing the original document or an authenticated

copy of it (section 133).