HEARSAY NOTES
s.114, 115, 116, 117, 118 and 124 CJA 2003
1. General Principles of the rule against hearsay in criminal proceedings
HEARSAY= second-hand evidence from an absent witness/contained in written statement.
Therefore, poses threat to fairness of trial since maker of statement cannot be CE.
ADMISSIBILITY
S114 CJA 2003 (1)→ a statement not made in oral evidence in the proceedings is admissible as
evidence of any matter stated if, but only if—
(a) any provision of this chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by s.118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
Hearsay applies to both P+D and all statements (incl. oral- not simply those made in
anticipation of trial). Covers records of routine business dealings, non-witness statements
AND past statements by a witness called to give oral evidence and who could therefore be CE
about what he has said previously (Horncastle).
A STATEMENT= any representation of fact or opinion made by a person by whatever means,
including a representation made in a sketch, photofit or other pictorial form (S.115(2)) = to
be read in combination with the definition of ‘matter stated’ (s.115(3).
‘MATTER STATED’
S115(3)→ A matter stated is one if (and only if) the purpose, or one of the purposes, of the
person making the statement appears to the court to have been—
(a) To cause another person to believe the matter, or
(b) To cause another person to act or a machine to operate on the basis that the matter is as
stated.
Evidence is hearsay only where it is relied upon as 'evidence of any matter stated' (where it
is sought to establish the truth of that matter). DIFFICULT where the speaker does not intend
to cause the listener to believe the matter. e.g. eyewitness (A) to car incident relates reg
number to B, who has not seen the reg number. It is hearsay for B to tell the court what the
number was to prove the truth of A’s statement. NOTE: if B makes a note of the number A
verifies, A may give evidence of the number by refreshing his memory from B’s note.
Examples:
• The labelling of items is hearsay e.g. if goods imported marked 'Produce of Morocco', the
marks are hearsay evidence of the origin country. Info stamped on a document is hearsay
evidence of the matters stated- often admissible under s.117 (business docs).
• A party to a conversation conducted through an interpreter infringes the hearsay rule if
he seeks to prove what the other party said by relaying to the court what the interpreter
, told him. AND a PO who testifies that a person is a heroin user is giving hearsay evidence
if knowledge is info supplied by others.
Care must always be taken to ascertain the 'matter stated', as may be more than one such
matter in issue. E.g. a defence was that the crime was committed by S, who did not testify.
Argued S confessed in a recorded conversation with E. The decision not to call E led to hearsay
problems to the content of the recording (which if it was a third-party confession might have
been admissible under s. 114(1)(d) in the IOJ) and to the need to prove the voice on the
recording was S, as E's out-of-court assertion could not be relied on (Williams [2014]).
Matters Intended to be Believed or Acted upon
Under s. 115(3), the matter impliedly stated by the callers in Kearley (that K is a dealer-
evidence of phone calls to K asking for drugs) is not one to which the hearsay rule applies as
the caller believes that the recipient already knows the matter in question and is therefore
not speaking with either of the hearsay purposes (cause to believe or act as though the matter
is stated). Also, in Kearley, callers thought speaking to K so little danger that, in making their
requests, they were seeking to mislead the person they were speaking to, or to misrepresent
the matter which P sought to rely- their belief that K was a dealer.
Hearsay and Previous Statements of Witnesses → The use of a W’s out-of-court statement
will not be hearsay if tendered as evidence of consistency rather than of a matter stated. BUT:
the use of previous statements to show consistency is frequently prohibited by the rule
against self-serving statements. Where, admissible, s.120 may apply to render the statement
to be evidence of any matter of which the maker's oral evidence would have been admissible.
The use of a W's previous inconsistent statement is not hearsay when tendered to show
inconsistency. BUT: s. 119 permits such a statement to be evidence of any matter stated.
(the reasons for exclusion of hearsay do not apply with the same force to out-of-court WS in
proceedings b/c often statement made while events fresher in mind)
Hearsay and Mechanically Produced Evidence → s.115(1) clarifies a statement as a
representation of fact or opinion made by a person so a mechanical generation of an image
e.g. by CCTV or a tape recording, is not hearsay. A W who has seen the recording may give
evidence of what he saw, as direct view of the action. ALSO, an image generated by a human
agency e.g. a representation in a 'sketch, photofit or other pictorial form' is a 'statement'. A
mechanically generated representation that depends for its accuracy on human input cannot
be used in the absence of proof that the input was accurate.
THREE-STAGE TEST for ascertaining whether communications are hearsay (Twist [2011]):
1. Ascertain the matter sought to be proved- what it is that a party is seeking to prove.
2. Provided that the matter sought to be proved is a relevant one, the next question is
whether there is a statement of that matter in the communication. If not (i.e. if the
communication is not a statement, but a request for drugs), no question of hearsay arises.
3. If the communication does state the matter, was it one of the purposes (not necessarily
the only purpose) that the recipient, or any other person, should believe that matter or
that a person should act upon the basis that it is as stated (or that a machine should
operate on that basis)? If yes, it is hearsay; if no, it is not.
, Twist→ P relied on text messages received by T to establish intent to supply drugs- but the
messages being mere requests for drugs, did not contain any statement that T was a dealer.
Even if such a statement could be inferred, the purpose of the senders did not include any
intention to cause anyone to believe he was.
In all the Twist appeals, there was a 'common understanding' b/w the parties to the
communication that rendered it non-hearsay e.g.
• Tomlinson and Kelly → the matter to be proved was that the A was in possession of a
gun. There was a text message to T from a third party seeking the return of a gun. The
message included a suggestion that T had the gun so the sender was not intent on causing
T to believe that fact (was a common understanding that was the case) so message not
hearsay.
• Lowe→ L charged with raping girlfriend - defence consent. Messages from L to the
complainant, apparently apologising for the rape and admitting the events were not
hearsay- L was not seeking to cause the complainant to believe she had been raped:
common understanding that happened.
ALSO:
• Khan [2013] → whether one of two parties to a conversation was acquainted with K. The
fact both parties referred to K by his nickname ‘Bana’ suggested he was well-known to
both- not hearsay as there was no purpose from either party to cause the other to believe
that he knew 'Bana'.
• CONTRAST: Doyle [2018] → P sought to prove D had been in possession of drugs by
reference to text messages from the recipient of the package asserting that D stolen drugs
from it and demanded D act on the accusation- messages were hearsay.
• Andrade [2015] → complainant raped by A and received messages from D (alleged to
have aided A to commit offence). Received messages from D - 'Sorry about that' and 'RU
mad at me?'. It was not necessary to decide whether the texts were hearsay b/c they
should have been excluded under s78 PACE anyway- difficulty calling D as a witness for
defence - in his absence, no realistic way for A to challenge the interpretation that D was
apologising for colluding in the rape. BUT: neither text seem to be hearsay- D’s purpose
being to apologise for something that both he and complainant know to have happened.
In some cases, it may be difficult to determine whether a statement is directed at another
person, and therefore whether it is intended to be believed:
• N [2006] → a statement in complainant's diary about her sexual relationship with her
uncle would have been hearsay (but admissible under an exception) had the statement
been intended for another, but if intended for the writer's sole use it was not hearsay.
• Marine Fisheries Agency [2009] → a diary was hearsay as it appeared to have been more
in the nature of a record- some entries made by a third party.
Hearsay and Non-hearsay Purposes
Evidence with More than One Purpose → The hearsay rule is not infringed where a
statement is tendered for some reason other than to establish the matter stated but may be
difficult to distinguish from hearsay. Possible evidence may be admissible as original evidence
for one purpose and inadmissible hearsay for another- require careful judicial direction as to
s.114, 115, 116, 117, 118 and 124 CJA 2003
1. General Principles of the rule against hearsay in criminal proceedings
HEARSAY= second-hand evidence from an absent witness/contained in written statement.
Therefore, poses threat to fairness of trial since maker of statement cannot be CE.
ADMISSIBILITY
S114 CJA 2003 (1)→ a statement not made in oral evidence in the proceedings is admissible as
evidence of any matter stated if, but only if—
(a) any provision of this chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by s.118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
Hearsay applies to both P+D and all statements (incl. oral- not simply those made in
anticipation of trial). Covers records of routine business dealings, non-witness statements
AND past statements by a witness called to give oral evidence and who could therefore be CE
about what he has said previously (Horncastle).
A STATEMENT= any representation of fact or opinion made by a person by whatever means,
including a representation made in a sketch, photofit or other pictorial form (S.115(2)) = to
be read in combination with the definition of ‘matter stated’ (s.115(3).
‘MATTER STATED’
S115(3)→ A matter stated is one if (and only if) the purpose, or one of the purposes, of the
person making the statement appears to the court to have been—
(a) To cause another person to believe the matter, or
(b) To cause another person to act or a machine to operate on the basis that the matter is as
stated.
Evidence is hearsay only where it is relied upon as 'evidence of any matter stated' (where it
is sought to establish the truth of that matter). DIFFICULT where the speaker does not intend
to cause the listener to believe the matter. e.g. eyewitness (A) to car incident relates reg
number to B, who has not seen the reg number. It is hearsay for B to tell the court what the
number was to prove the truth of A’s statement. NOTE: if B makes a note of the number A
verifies, A may give evidence of the number by refreshing his memory from B’s note.
Examples:
• The labelling of items is hearsay e.g. if goods imported marked 'Produce of Morocco', the
marks are hearsay evidence of the origin country. Info stamped on a document is hearsay
evidence of the matters stated- often admissible under s.117 (business docs).
• A party to a conversation conducted through an interpreter infringes the hearsay rule if
he seeks to prove what the other party said by relaying to the court what the interpreter
, told him. AND a PO who testifies that a person is a heroin user is giving hearsay evidence
if knowledge is info supplied by others.
Care must always be taken to ascertain the 'matter stated', as may be more than one such
matter in issue. E.g. a defence was that the crime was committed by S, who did not testify.
Argued S confessed in a recorded conversation with E. The decision not to call E led to hearsay
problems to the content of the recording (which if it was a third-party confession might have
been admissible under s. 114(1)(d) in the IOJ) and to the need to prove the voice on the
recording was S, as E's out-of-court assertion could not be relied on (Williams [2014]).
Matters Intended to be Believed or Acted upon
Under s. 115(3), the matter impliedly stated by the callers in Kearley (that K is a dealer-
evidence of phone calls to K asking for drugs) is not one to which the hearsay rule applies as
the caller believes that the recipient already knows the matter in question and is therefore
not speaking with either of the hearsay purposes (cause to believe or act as though the matter
is stated). Also, in Kearley, callers thought speaking to K so little danger that, in making their
requests, they were seeking to mislead the person they were speaking to, or to misrepresent
the matter which P sought to rely- their belief that K was a dealer.
Hearsay and Previous Statements of Witnesses → The use of a W’s out-of-court statement
will not be hearsay if tendered as evidence of consistency rather than of a matter stated. BUT:
the use of previous statements to show consistency is frequently prohibited by the rule
against self-serving statements. Where, admissible, s.120 may apply to render the statement
to be evidence of any matter of which the maker's oral evidence would have been admissible.
The use of a W's previous inconsistent statement is not hearsay when tendered to show
inconsistency. BUT: s. 119 permits such a statement to be evidence of any matter stated.
(the reasons for exclusion of hearsay do not apply with the same force to out-of-court WS in
proceedings b/c often statement made while events fresher in mind)
Hearsay and Mechanically Produced Evidence → s.115(1) clarifies a statement as a
representation of fact or opinion made by a person so a mechanical generation of an image
e.g. by CCTV or a tape recording, is not hearsay. A W who has seen the recording may give
evidence of what he saw, as direct view of the action. ALSO, an image generated by a human
agency e.g. a representation in a 'sketch, photofit or other pictorial form' is a 'statement'. A
mechanically generated representation that depends for its accuracy on human input cannot
be used in the absence of proof that the input was accurate.
THREE-STAGE TEST for ascertaining whether communications are hearsay (Twist [2011]):
1. Ascertain the matter sought to be proved- what it is that a party is seeking to prove.
2. Provided that the matter sought to be proved is a relevant one, the next question is
whether there is a statement of that matter in the communication. If not (i.e. if the
communication is not a statement, but a request for drugs), no question of hearsay arises.
3. If the communication does state the matter, was it one of the purposes (not necessarily
the only purpose) that the recipient, or any other person, should believe that matter or
that a person should act upon the basis that it is as stated (or that a machine should
operate on that basis)? If yes, it is hearsay; if no, it is not.
, Twist→ P relied on text messages received by T to establish intent to supply drugs- but the
messages being mere requests for drugs, did not contain any statement that T was a dealer.
Even if such a statement could be inferred, the purpose of the senders did not include any
intention to cause anyone to believe he was.
In all the Twist appeals, there was a 'common understanding' b/w the parties to the
communication that rendered it non-hearsay e.g.
• Tomlinson and Kelly → the matter to be proved was that the A was in possession of a
gun. There was a text message to T from a third party seeking the return of a gun. The
message included a suggestion that T had the gun so the sender was not intent on causing
T to believe that fact (was a common understanding that was the case) so message not
hearsay.
• Lowe→ L charged with raping girlfriend - defence consent. Messages from L to the
complainant, apparently apologising for the rape and admitting the events were not
hearsay- L was not seeking to cause the complainant to believe she had been raped:
common understanding that happened.
ALSO:
• Khan [2013] → whether one of two parties to a conversation was acquainted with K. The
fact both parties referred to K by his nickname ‘Bana’ suggested he was well-known to
both- not hearsay as there was no purpose from either party to cause the other to believe
that he knew 'Bana'.
• CONTRAST: Doyle [2018] → P sought to prove D had been in possession of drugs by
reference to text messages from the recipient of the package asserting that D stolen drugs
from it and demanded D act on the accusation- messages were hearsay.
• Andrade [2015] → complainant raped by A and received messages from D (alleged to
have aided A to commit offence). Received messages from D - 'Sorry about that' and 'RU
mad at me?'. It was not necessary to decide whether the texts were hearsay b/c they
should have been excluded under s78 PACE anyway- difficulty calling D as a witness for
defence - in his absence, no realistic way for A to challenge the interpretation that D was
apologising for colluding in the rape. BUT: neither text seem to be hearsay- D’s purpose
being to apologise for something that both he and complainant know to have happened.
In some cases, it may be difficult to determine whether a statement is directed at another
person, and therefore whether it is intended to be believed:
• N [2006] → a statement in complainant's diary about her sexual relationship with her
uncle would have been hearsay (but admissible under an exception) had the statement
been intended for another, but if intended for the writer's sole use it was not hearsay.
• Marine Fisheries Agency [2009] → a diary was hearsay as it appeared to have been more
in the nature of a record- some entries made by a third party.
Hearsay and Non-hearsay Purposes
Evidence with More than One Purpose → The hearsay rule is not infringed where a
statement is tendered for some reason other than to establish the matter stated but may be
difficult to distinguish from hearsay. Possible evidence may be admissible as original evidence
for one purpose and inadmissible hearsay for another- require careful judicial direction as to
