HEARSAY EVIDENCE
What is hearsay evidence?
Hearsay evidence contains a hearsay statement s114(1) CJA: ‘a statement, not made in oral
evidence, that is relied on as evidence of a matter in it.’
The statement must have the purpose, or a purpose – to have caused another person to believe that
the matter / cause a person to act on the basis of the matter – s115(3) CJA
gen
Is this hearsay?
In R v Twist and others, the following guidance was provided to determine whether the statement was
hearsay and whether hearsay rules would therefore apply:
The relevant fact/matter which needs to be proven …
Whether the statement sought to prove the fact/matter…
o If no = not hearsay
o If yes = is the statement being relied on to show the truth in the matter/fact and which
made the recipient believe the truth of the statement
If no = not hearsay
If yes = hearsay.
The statement is hearsay because, applying the guidance in R v Twist, the fact which ‘X’ wants to
prove is that ‘D’ did steal the bike. The statement sought to prove that ‘D’ stole the bike and ‘X’ is
relying on the fact that this statement was said to show the truth that ‘D’ stole he bike.
What is the general rule?
The general rule for hearsay in criminal proceedings is that it is inadmissible.
Exemptions to the general rule – when is hearsay admissible?
Under s114(1)(a), hearsay can be admitted if it is admissible under a statutory provision.
Apply – which statutory provision is relevant to the hearsay?
Hearsay is admissible as a result of a statutory provision in the following circumstances:
(a) cases where a witness in unavailable – CJA 2003, s 116
(b) business and other documents – CJA 2003, s 117
(c) previous inconsistent statements of a witness – CJA 2003, s 119
(d) previous consistent statements by a witness – CJA 2003, s 120
(e) reports prepared by experts (if leave of the court is obtained) – CJA 1988, s 30
(f) evidence of a confession made by the defendant – PACE 1984, s 76(1)
(g) evidence raised by a defendant of a confession made by a co-accused – PACE 1984, s 76A(1) (h)
statements from a witness which are not in dispute – CJA 1967, s 9
(i) formal admissions – CJA 1967, s 10
APPLY – What ground is relevant here?
See below for examples…
, Situation that Details
allows hearsay to
be admissible
Witness is Part 20 CPR and S116(1) In criminal proceedings a statement not made in
unavailable – CJA oral evidence in the proceedings is admissible as evidence of any matter
S166 stated if—
(a) oral evidence given in the proceedings by the person who made the
statement would be admissible as evidence of that matter [ie, the statement
must be ‘first-hand hearsay’],
(b) the person who made the statement is identified to the court’s satisfaction,
and
APPLY – do this first:
S116(1)(a) – it is first hand hearsay or multiple hearsay? – Multiple not
allowed.
S116(1)(b) – can ‘X’ be identified to the courts satisfaction
Additionally, one of the five conditions under s116(2)(a-e) must apply: (
(a) the relevant person is dead;
(b) the relevant person is unfit to be a witness because of their bodily or
mental condition;
(c) the relevant person is outside the UK and it is not reasonably practicable to
secure their attendance;
(d) the relevant person cannot be found, although reasonable steps have been
taken to find them
(e) through fear the person does not give oral evidence in the proceedings,
either at all or in connection with the subject matter of the statement, and the
court gives leave for the statement to be given in evidence.
APPLY – Just apply whatever is relevant
What condition does the witness satisfy?
Conclude:
Can the hearsay be admitted?
Apply s116(4) S116(4) requires the court to give leave for ‘X’s
statement to be admitted if it considers the statement ought to be
admitted in the interest of justice having regard to:
o The content of the statement
o Any risk of unfairness
o Whether a special measure direction could be made
o Other relevant circumstances
= ‘x’ will need the courts permission to have the hearsay admitted.
NOTE:
Court will not be satisfied with mere ‘we cannot find the witness’
Or, if the witness has left the country – for how long? Video call to give
evidence at trial??
Disadvantage for D if hearsay is admitted – no opportunity to cross
examine the witness
Disadvantage for prosecution if admitting hearsay – that it does not
carry as much weight as first hand, direct evidence and if the witness
were to stand at trial and give oral evidence
Hearsay comes Hearsay from the defendant’s confession is admissible as confession evidence
from D’s confession is admissible under s76(1) PACE.
– s76(1) PACE
Additionally - S118(1) preserves the common law rule that a confession made
by a defendant will be admissible in evidence against him, even if the
confession is hearsay evidence.
What is hearsay evidence?
Hearsay evidence contains a hearsay statement s114(1) CJA: ‘a statement, not made in oral
evidence, that is relied on as evidence of a matter in it.’
The statement must have the purpose, or a purpose – to have caused another person to believe that
the matter / cause a person to act on the basis of the matter – s115(3) CJA
gen
Is this hearsay?
In R v Twist and others, the following guidance was provided to determine whether the statement was
hearsay and whether hearsay rules would therefore apply:
The relevant fact/matter which needs to be proven …
Whether the statement sought to prove the fact/matter…
o If no = not hearsay
o If yes = is the statement being relied on to show the truth in the matter/fact and which
made the recipient believe the truth of the statement
If no = not hearsay
If yes = hearsay.
The statement is hearsay because, applying the guidance in R v Twist, the fact which ‘X’ wants to
prove is that ‘D’ did steal the bike. The statement sought to prove that ‘D’ stole the bike and ‘X’ is
relying on the fact that this statement was said to show the truth that ‘D’ stole he bike.
What is the general rule?
The general rule for hearsay in criminal proceedings is that it is inadmissible.
Exemptions to the general rule – when is hearsay admissible?
Under s114(1)(a), hearsay can be admitted if it is admissible under a statutory provision.
Apply – which statutory provision is relevant to the hearsay?
Hearsay is admissible as a result of a statutory provision in the following circumstances:
(a) cases where a witness in unavailable – CJA 2003, s 116
(b) business and other documents – CJA 2003, s 117
(c) previous inconsistent statements of a witness – CJA 2003, s 119
(d) previous consistent statements by a witness – CJA 2003, s 120
(e) reports prepared by experts (if leave of the court is obtained) – CJA 1988, s 30
(f) evidence of a confession made by the defendant – PACE 1984, s 76(1)
(g) evidence raised by a defendant of a confession made by a co-accused – PACE 1984, s 76A(1) (h)
statements from a witness which are not in dispute – CJA 1967, s 9
(i) formal admissions – CJA 1967, s 10
APPLY – What ground is relevant here?
See below for examples…
, Situation that Details
allows hearsay to
be admissible
Witness is Part 20 CPR and S116(1) In criminal proceedings a statement not made in
unavailable – CJA oral evidence in the proceedings is admissible as evidence of any matter
S166 stated if—
(a) oral evidence given in the proceedings by the person who made the
statement would be admissible as evidence of that matter [ie, the statement
must be ‘first-hand hearsay’],
(b) the person who made the statement is identified to the court’s satisfaction,
and
APPLY – do this first:
S116(1)(a) – it is first hand hearsay or multiple hearsay? – Multiple not
allowed.
S116(1)(b) – can ‘X’ be identified to the courts satisfaction
Additionally, one of the five conditions under s116(2)(a-e) must apply: (
(a) the relevant person is dead;
(b) the relevant person is unfit to be a witness because of their bodily or
mental condition;
(c) the relevant person is outside the UK and it is not reasonably practicable to
secure their attendance;
(d) the relevant person cannot be found, although reasonable steps have been
taken to find them
(e) through fear the person does not give oral evidence in the proceedings,
either at all or in connection with the subject matter of the statement, and the
court gives leave for the statement to be given in evidence.
APPLY – Just apply whatever is relevant
What condition does the witness satisfy?
Conclude:
Can the hearsay be admitted?
Apply s116(4) S116(4) requires the court to give leave for ‘X’s
statement to be admitted if it considers the statement ought to be
admitted in the interest of justice having regard to:
o The content of the statement
o Any risk of unfairness
o Whether a special measure direction could be made
o Other relevant circumstances
= ‘x’ will need the courts permission to have the hearsay admitted.
NOTE:
Court will not be satisfied with mere ‘we cannot find the witness’
Or, if the witness has left the country – for how long? Video call to give
evidence at trial??
Disadvantage for D if hearsay is admitted – no opportunity to cross
examine the witness
Disadvantage for prosecution if admitting hearsay – that it does not
carry as much weight as first hand, direct evidence and if the witness
were to stand at trial and give oral evidence
Hearsay comes Hearsay from the defendant’s confession is admissible as confession evidence
from D’s confession is admissible under s76(1) PACE.
– s76(1) PACE
Additionally - S118(1) preserves the common law rule that a confession made
by a defendant will be admissible in evidence against him, even if the
confession is hearsay evidence.
