DR WS16
Preparing for trial, sentencing, and professional ethics
Hearsay evidence
Definition s114(1) of the CJA 2003: “a statement, not made in oral evidence, that is relied on as evidence of a
matter in it”.
Hearsay evidence is any:
Oral or written statement.
Made outside of court.
Which is repeated in court.
In order to prove the truth of the matter.
Examples of hearsay A witness repeating at trial what he another person has told the witness
A statement from a witness being read out at trial instead of the witness attending.
A police officer repeating a confession at trial.
A business document being introduced in evidence at trial
o E.g. this will be a written statement; e.g. an accounts ledger showing an entry of £500 will
amount to a statement made outside of court.
When will hearsay s114 CJA 2003:
be admissible? Generally inadmissible.
Hearsay will only be admissible if:
Any statutory provision makes it admissible (s114(1)(a))
Any common law rule preserved by s118 makes it admissible (s114(1)(b))
The parties agree to the evidence being admissible (s114(1)(c))
The evidence is admissible in the interests of justice (s114(1)(d))
“Any statutory Relevant provisions which make hearsay admissible are:
provision” s114(1)(a) Cases where a witness in unavailable – CJA 2003, s116
CJA 2003 Business and other documents – CJA 2003, s117
Reports prepared by experts (if leave of the court is obtained) – CJA 1988, s30
Evidence of a confession made by the defendant – PACE 1984, s76(1)
Statements from a witness which are not in dispute – CJA 1967, s9
Cases where a Hearsay evidence will only be admissible where a witness is unavailable
witness is IF they are unavailable because:
unavailable (a) The relevant person is dead;
s116(2) (a – e) CJA (b) The relevant person is unfit to be a witness because of his bodily or mental
2003 condition.
(c) The relevant person is outside the United Kingdom and it is not reasonably
practicable to secure his attendance.
(d) The relevant person cannot be found, although such steps as it is reasonably
practicable to take to find him have been taken.
(e) Through fear the relevant 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.
s116 applies only to first hand hearsay
i.e. if B tells C something, and C seeks to repeat the matter in court, C will only be able
to do so under s116 if B is dead, outside of the UK and it is not reasonably practicable
to secure his attendance etc.
However if A tells B who tells C something, and C seeks to repeat the matter in court,
s116 will not enable this and the hearsay will be excluded.
Challenging the The court may refuse to admit hearsay evidence:
admissibility of By exercising their discretion under s126(1) of the CJA 2003.
hearsay evidence By exercising their discretion under s78 of PACE 1984.
If the evidence is a confession, by the prosecution failing to successfully prove that the two
grounds under s76(2) of PACE 1984 do not apply.
s126(1):
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, DR WS16
o Court has a general discretion to refuse to admit hearsay if “the court is 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”.
o Essentially a balancing exercise; how important is the hearsay to the case? Would
admitting the hearsay amount to an undue waste of time?
s78 PACE 1984:
o The court may exclude hearsay if the evidence “would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it”.
o Relevant to confessions:
Likely to be relied upon because the defendant persuades the court that their
confession was untrue (due to a breach of Code C, the suspect’s physical condition,
or an ulterior motive on the part of the defendant making the confession
unreliable) OR
The defendant successfully denies making the confession at all on the basis it was
not recorded properly by the police (see Confession Evidence).
Confessions: Can the confession be excluded under s76(2):
o i.e. s76(2): Has the confession been brought about due to:
Oppression (torture, inhuman or degrading treatment, and the use or threat of
violence – s76(8)) or
Anything said or done which was likely to render the confession unreliable (i.e. a
Breach of Code C – s76(2)(b)).
Hearsay notices Part 20 of the Criminal Procedure Rules provides that a party who is seeking to rely on hearsay
must serve a hearsay notice on all other parties and the court.
This will only be required if the hearsay is admissible:
Due to a witness being unable to attend court (s116).
Due to it being in the interests of justice to admit the hearsay (s114(1)(d)).
Due to the evidence being multiple hearsay (s121).
Either the prosecution or defence rely on s117 for admission of a written witness
statement.
Note, a hearsay notice is NOT required to admit confession evidence under s76(1).
Time Limits:
Magistrates Court:
Notice must be sent not more than 28 days after the defendant pleads not guilty.
Crown Court:
Notice must be sent not more than 14 days after the defendant pleads not guilty.
Documentary hearsay
s117 CJA 2003: Documentary hearsay
Exception to the general rule that hearsay is inadmissible
If there is documentary hearsay (e.g. a receipt from a shop which evidences that the accused purchased a gun; this will
be hearsay i.e. a written statement made outside of court, which the CPS will wish to repeat to the court to prove the
truth of the matter stated in the document i.e. that the accused bought a gun).
This will be admissible so long as the document was created or received by a person in the course of a trade,
business, profession or occupation.
The person who created or received it must have had personal knowledge of the matters dealt with in the
document e.g. the receipt example above, if it was created by the shop-worker who served the gun-man.
Multiple documentary hearsay will be admissible. E.g. A tells B tells C who writes the statement down in a document.
Procedure: Hearsay Notices
Overview Part 20.2 of the Criminal Procedure Rules provides that a party who is seeking to rely on hearsay must serve
a hearsay notice to rely on intention on all other parties and the court.
This will only be required if the hearsay is admissible:
Due to a witness being unable to attend court (s116).
Due to it being in the interests of justice to admit the hearsay (s114(1)(d)).
Due to the evidence being multiple hearsay (s121).
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Preparing for trial, sentencing, and professional ethics
Hearsay evidence
Definition s114(1) of the CJA 2003: “a statement, not made in oral evidence, that is relied on as evidence of a
matter in it”.
Hearsay evidence is any:
Oral or written statement.
Made outside of court.
Which is repeated in court.
In order to prove the truth of the matter.
Examples of hearsay A witness repeating at trial what he another person has told the witness
A statement from a witness being read out at trial instead of the witness attending.
A police officer repeating a confession at trial.
A business document being introduced in evidence at trial
o E.g. this will be a written statement; e.g. an accounts ledger showing an entry of £500 will
amount to a statement made outside of court.
When will hearsay s114 CJA 2003:
be admissible? Generally inadmissible.
Hearsay will only be admissible if:
Any statutory provision makes it admissible (s114(1)(a))
Any common law rule preserved by s118 makes it admissible (s114(1)(b))
The parties agree to the evidence being admissible (s114(1)(c))
The evidence is admissible in the interests of justice (s114(1)(d))
“Any statutory Relevant provisions which make hearsay admissible are:
provision” s114(1)(a) Cases where a witness in unavailable – CJA 2003, s116
CJA 2003 Business and other documents – CJA 2003, s117
Reports prepared by experts (if leave of the court is obtained) – CJA 1988, s30
Evidence of a confession made by the defendant – PACE 1984, s76(1)
Statements from a witness which are not in dispute – CJA 1967, s9
Cases where a Hearsay evidence will only be admissible where a witness is unavailable
witness is IF they are unavailable because:
unavailable (a) The relevant person is dead;
s116(2) (a – e) CJA (b) The relevant person is unfit to be a witness because of his bodily or mental
2003 condition.
(c) The relevant person is outside the United Kingdom and it is not reasonably
practicable to secure his attendance.
(d) The relevant person cannot be found, although such steps as it is reasonably
practicable to take to find him have been taken.
(e) Through fear the relevant 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.
s116 applies only to first hand hearsay
i.e. if B tells C something, and C seeks to repeat the matter in court, C will only be able
to do so under s116 if B is dead, outside of the UK and it is not reasonably practicable
to secure his attendance etc.
However if A tells B who tells C something, and C seeks to repeat the matter in court,
s116 will not enable this and the hearsay will be excluded.
Challenging the The court may refuse to admit hearsay evidence:
admissibility of By exercising their discretion under s126(1) of the CJA 2003.
hearsay evidence By exercising their discretion under s78 of PACE 1984.
If the evidence is a confession, by the prosecution failing to successfully prove that the two
grounds under s76(2) of PACE 1984 do not apply.
s126(1):
1
, DR WS16
o Court has a general discretion to refuse to admit hearsay if “the court is 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”.
o Essentially a balancing exercise; how important is the hearsay to the case? Would
admitting the hearsay amount to an undue waste of time?
s78 PACE 1984:
o The court may exclude hearsay if the evidence “would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it”.
o Relevant to confessions:
Likely to be relied upon because the defendant persuades the court that their
confession was untrue (due to a breach of Code C, the suspect’s physical condition,
or an ulterior motive on the part of the defendant making the confession
unreliable) OR
The defendant successfully denies making the confession at all on the basis it was
not recorded properly by the police (see Confession Evidence).
Confessions: Can the confession be excluded under s76(2):
o i.e. s76(2): Has the confession been brought about due to:
Oppression (torture, inhuman or degrading treatment, and the use or threat of
violence – s76(8)) or
Anything said or done which was likely to render the confession unreliable (i.e. a
Breach of Code C – s76(2)(b)).
Hearsay notices Part 20 of the Criminal Procedure Rules provides that a party who is seeking to rely on hearsay
must serve a hearsay notice on all other parties and the court.
This will only be required if the hearsay is admissible:
Due to a witness being unable to attend court (s116).
Due to it being in the interests of justice to admit the hearsay (s114(1)(d)).
Due to the evidence being multiple hearsay (s121).
Either the prosecution or defence rely on s117 for admission of a written witness
statement.
Note, a hearsay notice is NOT required to admit confession evidence under s76(1).
Time Limits:
Magistrates Court:
Notice must be sent not more than 28 days after the defendant pleads not guilty.
Crown Court:
Notice must be sent not more than 14 days after the defendant pleads not guilty.
Documentary hearsay
s117 CJA 2003: Documentary hearsay
Exception to the general rule that hearsay is inadmissible
If there is documentary hearsay (e.g. a receipt from a shop which evidences that the accused purchased a gun; this will
be hearsay i.e. a written statement made outside of court, which the CPS will wish to repeat to the court to prove the
truth of the matter stated in the document i.e. that the accused bought a gun).
This will be admissible so long as the document was created or received by a person in the course of a trade,
business, profession or occupation.
The person who created or received it must have had personal knowledge of the matters dealt with in the
document e.g. the receipt example above, if it was created by the shop-worker who served the gun-man.
Multiple documentary hearsay will be admissible. E.g. A tells B tells C who writes the statement down in a document.
Procedure: Hearsay Notices
Overview Part 20.2 of the Criminal Procedure Rules provides that a party who is seeking to rely on hearsay must serve
a hearsay notice to rely on intention on all other parties and the court.
This will only be required if the hearsay is admissible:
Due to a witness being unable to attend court (s116).
Due to it being in the interests of justice to admit the hearsay (s114(1)(d)).
Due to the evidence being multiple hearsay (s121).
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