Hearsay is one of the most important and complex areas of evidence law. A witness in court can normally only give evidence about what they saw, heard, or experienced themselves. If they try to repeat what someone else said, that is hearsay. The problem with hearsay is that the original maker of the statement is not in court, so they cannot be cross-examined. This makes it potentially unreliable, which is why there are strict rules about when it can be admitted.
The general rule is that hearsay is NOT admissible in criminal proceedings. The CJA 2003 changed the law significantly, but the starting position remains the same: first-hand evidence from a witness in court is always preferred over hearsay.
In criminal proceedings, a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if, any of the provisions of this Chapter or any other statutory provision makes it admissible.
For the purposes of this Chapter, a matter stated is anything stated or referred to that is, or is implied to be, a fact or an opinion about a fact.
A hearsay statement is any statement made outside of court that is relied on to prove the truth of its contents. The key test is: is the statement being used to prove that what it says is true? If someone says "Bob told me it was raining," and you are using that to prove it WAS raining, that is hearsay. If you are using it merely to prove that Bob CAN speak, that is not hearsay.
Not every out-of-court statement is hearsay. The key question is always about the PURPOSE for which the statement is being used. If the statement is not being relied on for the truth of its contents, it is not hearsay and can be admitted without relying on any hearsay exception. This is a critical distinction that you need to master.
Imagine a witness says: "The victim shouted 'Run, he's got a knife!'". If this is used to prove the defendant HAD a knife, it is hearsay. But if it is used to explain why the witness ran away (i.e. to make the witness's behaviour understandable), it is NOT hearsay. The same statement can be both hearsay and non-hearsay depending on the purpose for which it is adduced.
Before the CJA 2003, hearsay was governed by a complex mix of common law rules and the Criminal Justice Act 1988. The CJA 2003 swept most of that away and replaced it with a new statutory framework. The general rule is in s.114(1): hearsay is only admissible if a specific statutory provision makes it admissible. Section 114(2) then provides a "safety net" for cases that do not fit within any specific provision.
In criminal proceedings, a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if, subsections (2) or (3) apply.
Section 114(1) tells you that hearsay is only admissible through one of two subsections. In practice, there are four routes: (1) a specific statutory provision, (2) a preserved common law rule, (3) all parties agree to its admission, or (4) the court admits it in the interests of justice under s.114(1)(d). You need to check each route in turn.
| Route | Source | Description |
|---|---|---|
| Statutory provision | s.114(1)(c) | Another part of CJA 2003 or another Act makes it admissible |
| Preserved common law | s.114(1)(c) | A common law rule preserved by s.126 CJA 2003 |
| Agreement | s.114(1)(c) | All parties to the proceedings agree to admit the statement |
| Interests of justice | s.114(1)(d) | The court is satisfied it is in the interests of justice |
Hearsay is admissible if the court is satisfied that it is in the interests of justice for it to be admissible.
This is the "safety net" provision. If hearsay does not fall under any specific statutory provision and the parties do not all agree to its admission, the court can still admit it if it is in the interests of justice. The court must consider the factors in s.114(2) when making this decision. This gives the court a discretionary power, but it is not unlimited - the factors guide the exercise of that discretion.
In determining whether the interests of justice require a statement to be admissible, the court must have regard to the following factors: (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue, (b) what other evidence has been, or can be, given on the matter, (c) how important the matter is, (d) the circumstances in which the statement was made, (e) how reliable the maker of the statement appears to be, (f) whether the maker is available to give oral evidence, (g) any risk that admitting the statement would be unfair to a party, and (h) the degree of difficulty in challenging the statement.
When answering an exam question about s.114(1)(d), do not just list the factors. You need to APPLY each factor to the facts of the case. Weigh up the probative value against the potential unfairness. The court is doing a balancing exercise, and your answer should reflect that.
Section 115 of the CJA 2003 makes a defendant's own out-of-court statements admissible. This covers situations where the defendant wants to rely on a statement they made outside of court, or wants to call hearsay evidence as part of their defence. The thinking behind this is that if the defendant wants to rely on hearsay, they should generally be allowed to - it is their defence, and they are the ones who will suffer if the evidence is unreliable.
In criminal proceedings, a statement made by a person (other than the defendant) is admissible as evidence of any matter stated if it is given in evidence for the purpose of, or is relied on as, a defence in the proceedings.
If the defendant made a statement outside of court (for example, to the police or to a friend) and now wants to rely on it, this is generally admissible under s.115(3). The defendant cannot complain about the reliability of their own statement. However, the prosecution can still challenge the statement under s.78 PACE if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
The defendant's hearsay under s.115(3) is not completely unrestricted. The court can still exclude the evidence under s.78 PACE 1984 if its admission would render the trial unfair. Additionally, the evidence must still be relevant and have some probative value.
Multiple hearsay (sometimes called "hearsay within hearsay") occurs when a statement contains or refers to another statement made by a different person. For example, if a witness says "Bob told me that Jane saw the defendant running from the scene," there are two layers: Bob's statement and Jane's (embedded) statement. Each layer needs its own route to admissibility.
A hearsay statement is not admissible to prove the truth of a matter stated if the matter stated is (or includes) a statement made by a person other than the maker of the hearsay statement, unless both the hearsay statement and the included statement are admissible under this Chapter or any other statutory provision.
Section 121 creates a double requirement. BOTH the outer statement AND the inner (embedded) statement must each have their own independent route to admissibility. So if a witness wants to say "Bob told me Jane saw the crime," Bob's statement needs its own route and Jane's statement also needs its own route. If either fails, the evidence cannot be used for the truth of the embedded matter.
In criminal proceedings, a statement in a document is admissible as evidence of any matter stated if the following requirements are satisfied: (a) the statement was made by a person in the course of a trade, business, profession, or other occupation, or as holder of a paid or unpaid office, and (b) the person who made the statement is unavailable or cannot reasonably be expected to have any recollection of the matters stated.
This provision replaces the old "records made in the course of a trade or business" rule from the Criminal Justice Act 1988. It allows documents created in the ordinary course of business to be admitted even if the person who created them cannot give oral evidence. Common examples include medical records, shop receipts, computer logs, and CCTV footage. The document must have been created as part of the maker's ordinary business activities, not specifically for litigation.
A document created specifically for use in legal proceedings does NOT fall under s.117. For example, a witness statement prepared for court is not a business document. The statement must have been created in the ordinary course of business, for the purposes of that business, not for the purpose of litigation.
The CJA 2003 did not completely abolish the common law. Section 126 preserves certain common law rules relating to the admissibility of hearsay evidence. These preserved rules sit alongside the statutory provisions and provide additional routes to admissibility. The preserved rules include res gestae, dying declarations, public documents, and admissions.
Res gestae (Latin for "things done") is a common law doctrine that allows statements made as part of the same transaction or event to be admitted as evidence, even though they are technically hearsay. The idea is that certain statements are so closely connected to an event that they can be considered part of the event itself. If a statement is made spontaneously during or immediately after an event, it is more likely to be reliable.
If a victim shouts "He's got a gun!" while being attacked, that statement is part of the res gestae of the attack. It was made spontaneously, during the event, and its reliability is supported by the fact that the person was under stress and had no time to fabricate it. This can be admitted even though the victim might not give evidence at trial.
At common law, a statement made by a person who believed they were about to die is admissible as evidence of the cause of their death and the circumstances surrounding it. The rationale is the "certainty of death" - a person who believes they are dying has no reason to lie. This rule has been preserved by s.126 of the CJA 2003 and applies in homicide cases where the victim's statement identifies their killer or describes the circumstances of the fatal attack.
Dying declarations are now less important than they used to be, because many cases that would have relied on them can now be dealt with under the statutory provisions (particularly s.114(1)(d)). However, they are still a preserved common law route and can be useful in homicide cases.
At common law, entries in public documents are admissible as evidence of the facts they record. This covers official records kept by public authorities, such as birth and death certificates, records of convictions, and other official registers. The rationale is that public authorities have systems in place to ensure the accuracy of their records, so there is less need for the maker to be cross-examined.
Many public documents can also be admitted under the Criminal Justice Act 1988 (which is still in force for this purpose) or under s.117 of the CJA 2003 as business documents. The common law rule is preserved as a fallback, but in practice, most public documents are now admitted under one of the statutory routes.
At common law, an admission by a party to the proceedings is admissible as an exception to the hearsay rule. This is based on the principle that a person is unlikely to make a statement against their own interest unless it is true. In criminal proceedings, this means that an out-of-court admission by the defendant is admissible against them. This common law rule is preserved by s.126 of the CJA 2003.
Note that an ADMISSION is not the same as a CONFESSION. A confession is a statement wholly or partly adverse to the accused and is governed by PACE 1984 s.76. An admission is a broader concept - it includes any statement that tends to prove the defendant's guilt, even if it does not amount to a full confession. For example, "I was there but I didn't do it" is an admission of presence but not a confession.
The main concern with hearsay is that the maker cannot be cross-examined. If the maker IS available, the court will usually require them to give live evidence instead. The CJA 2003 does not make unavailability a general requirement for admissibility, but several specific provisions (such as s.117 for business documents) do require the maker to be unavailable or to have no recollection. Under s.114(1)(d), the availability of the maker is one of the factors the court must consider.
A statement made by a witness is admissible under this section if: (a) the witness is identified to the court, (b) the witness is unavailable (dead, unfit, outside the UK and cannot be compelled, or cannot be found), and (c) the statement was made on oath in previous proceedings, or is contained in a document that would be admissible under s.117.
Section 116(2)(e) is particularly important. A witness who is too frightened to give evidence is treated as unavailable. The court must be satisfied that the quality of the evidence is likely to be diminished by the fear, but the fear does not need to be reasonable - it is a subjective test.
Even if hearsay satisfies one of the statutory routes to admissibility, the court still has a discretion to exclude it under s.78 of PACE 1984. If admitting the hearsay would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, the court can exclude it. This acts as a final safeguard. The key question is whether the defendant has had a fair opportunity to challenge the statement.
When deciding whether to exclude hearsay under s.78, the court will consider whether the defendant can challenge the statement in other ways (for example, through other witnesses or documents). The court will also consider the quality of the hearsay evidence - a clear, detailed, contemporaneous statement is less likely to be excluded than a vague, late, or inconsistent one. Article 6 of the ECHR (right to a fair trial) underpins this discretion.