HEARSAY

Introduction
Hearsay evidence is best explained by way of an example: where a witness, W, makes a
statement to another person, X, about something that W directly perceived, X cannot be
called to give evidence in court of the matter perceived by W because it is hearsay evidence.
The evidence cannot be received by the court in this manner because X has no personal
knowledge of the matter in question, but is relying on what was said to him by W. Hearsay
evidence is generally inadmissible because it is inherently unreliable and it is difficult to
challenge in court. The law requires that only the best evidence be put before the tribunal of
fact, and, thus, W (who is the only person who can give the best evidence here) must be called
to give evidence of what he personally perceived. However, sometimes it is not possible to
call W to give evidence of the matter: he might have died since the statement was made, or
he may have moved away and might now be untraceable. In such circumstances, the trial
judge may allow the evidence to be adduced in court by another witness. Before such hearsay
evidence is deemed to be admissible in court, the trial judge must consider factors, such as
the likely reliability of the evidence and the difficulty that the defence may have in challenging
the evidence.

What is Hearsay?
Hearsay is a statement made by a person other than in oral evidence, which is adduced in
court in order to prove that the matter stated in the statement was or is true.
In R v Sharp, Lord Havers adopted the definition of hearsay in Cross on Evidence:
‘An assertion other than one made by a person while giving oral evidence in the proceedings
is inadmissible as evidence of any fact asserted.’

Under the Criminal Justice Act 2003 statutory framework, Section 114(1) now provides that
‘in criminal proceedings a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if.’ Thus, according to this section, hearsay is a
statement not made in oral evidence which is adduced as evidence of any matter stated. In R
v Twist, Hughes LJ stated that the words ‘admissible as evidence of any matter stated’ require
us to ask what it is that a party is seeking to prove.
Thus, there are two essential aspects to the definition of hearsay:
1. The place – the first aspect relates to where the statement was made. The statement
must be made out of court (i.e. other than while giving oral evidence in court); and

2. The purpose – the second aspect relates to why the party seeking to rely on the
statement wishes to adduce it in evidence. If the purpose of adducing the statement

1
 is to prove that what was said was true, then it is hearsay. However, if the purpose for
adducing the evidence is something other than proving the truth of its contents (for
instance, to prove instead that the witness was present by establishing that he or she
spoke), then it is not hearsay evidence. Such evidence is instead deemed original
evidence, and it is admissible. Thus, the statement in question will necessarily contain
something descriptive which is capable of being true or false.

The key difference between hearsay evidence and original evidence is the purpose for which
the party seeks to rely on the statement in court. In Subramaniam v Public Prosecutor, Mr L.
M. D. De Silva in the Privy Council stated that:
‘Evidence of a statement made to a witness by a person who is not himself called as a witness
may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is
to establish the truth of what is contained in the statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence, not the truth of the statement, but the fact
that it was made. The fact that the statement made, quite apart from its truth, is frequently
relevant in considering the mental state and conduct thereafter of the witness or of some
other person in whose presence the statement was made.’
If the purpose of adducing the evidence is to prove that what was said by the maker of the
statement was true, then the statement is hearsay and generally inadmissible, but if there is
some other purpose for adducing the evidence, then the statement is original and admissible.
By way of an example, imagine that X is a witness to the end of a fight, in which V is seriously
injured. After witnessing the attack, X says to Y, ‘I saw Fred running away’. If X is unavailable
to give evidence in court, the prosecution may wish to call Y to give evidence of what X said
to him. However, if the purpose of adducing the evidence of what X said to him. However, if
the purpose of adducing the evidence of what X said was to prove the truth of its contents,
i.e. that Fred was running away, then Y will not be permitted to give that evidence as it will be
inadmissible hearsay. However, if, instead, the purpose of adducing the evidence was to prove
something other than the truth of its contents, e.g. to prove that X was at the scene or that
he spoke, then Y will be able to give evidence of what X said as this will be original evidence.

HEARSAY ORIGINAL EVIDENCE

Out of court statement tendered to prove Out of court statement tendered to prove
the truth of its contents. something other than the truth of its
contents.

Generally inadmissible Generally admissible

2
Development of the Law
At common law, hearsay evidence was generally inadmissible. The rationale for its exclusion
was enunciated by Lord Normand in the House of Lords in Teper v R:
‘The rule against the admission of hearsay evidence is fundamental. It is not the best evidence,
and it is not delivered on oath. The truthfulness and accuracy of the person whose words are
spoken to by another witness cannot be tested by cross-examination, and the light which his
demeanour would throw on his testimony is lost.’
Hearsay evidence is not the best evidence because it is not delivered in a courtroom and on
oath. It is generally unreliable evidence because the maker of the statement is not present in
court and available to be cross-examined in order to check the accuracy of the statement. The
tribunal of fact is unable to assess the demeanour of the witness and how their testimony
stands up to challenge, and thus, it is difficult for the tribunal to judge the credibility of the
maker of the statement.
The common law developed a complicated set of rules to govern the admissibility of hearsay
evidence in criminal proceedings. The general rule was that hearsay evidence was deemed to
be inadmissible unless one of the exceptions to the rule applied. Most of the exceptions were
to be found at common law. However, the common law was unsatisfactory for many reasons:
it was complicated, confusing and inflexible as the courts were reluctant to create new
exceptions. This inflexibility was most notable in the case of Myers v DPP, in which the House
of Lords refused to extend the common law exceptions to apply inherently reliable business
documents.
As stated above, the law on hearsay prior to the Criminal Justice Act 2003 was complicated,
confusing and often unsatisfactory. A further example of the unsatisfactory nature of the law
can be seen in the case of R v Kearley. In R v Kearley, the House of Lords held that implied
assertions were inadmissible despite the fact that the evidence of the implied assertions was
likely to be reliable. As we have seen above, the decision in this case was criticised by
commentators and it would seem that Section 115(3) of the Criminal Justice Act 2003 has now
overturned the decision in R v Kearley by ensuring that implied assertions do not fall within
the definition of hearsay under the Criminal Justice Act 2003.
In 1991, the Royal Commission on Criminal Justice recommended that the law on hearsay be
reformed in order to allow the admission of hearsay evidence in court to a greater extent. The
rationale for this was to allow the jury to determine the weight to be given to evidence which
is relevant, albeit hearsay evidence. The Commission recognised that the law on hearsay
evidence in criminal proceedings was ‘exceptionally complex and difficult to interpret’ and
recommended that the Law Commission should explore the rules of hearsay before the law
be reformed. Consequently, the Law Commission published first a Consultation Paper and
then a Report which explored the rule against hearsay and made recommendations for
reform. The law on hearsay was again considered by Sir Robin Auld in his Review of the
Criminal Courts of England and Wales. Auld recommended that the law should be reformed
to admit of hearsay evidence in criminal proceedings and trust the jury to assess the weight
of the evidence. The recommendations of both the Law Commission and Sir Robin Auld

3
ultimately led to the enactment of the reforms in the Criminal Justice Act 2003 which sought
to provide more flexibility to the admission of hearsay evidence and place more trust in the
tribunal of fact to determine the cogency of such evidence.

Hearsay under the Criminal Justice Act 2003

As stated above, the Criminal Justice Act 2003 reformed the law on hearsay in criminal
proceedings. The Act permits the admission of hearsay evidence in certain specified
circumstances. The law on hearsay is now largely covered by the statutory framework under
the 2003 Act, although some aspects of the common law have been preserved under Section
118. Since the enactment of the Criminal Justice Act 2003, the courts have confirmed that the
effect of the Act is that the common law prohibition on the admissibility of hearsay evidence
is still the ‘default’ rule, but that the Act has widened the categories of hearsay evidence which
are admissible. The wording of the Criminal Justice Act 2003 takes a positive, inclusionary
approach to the admissibility of hearsay evidence as Section 114(1) provides the
circumstances in which hearsay is deemed to be admissible. Thus, hearsay evidence is
admissible provided that one of the paragraphs under Section 114(1)(a) to (d) applies.

Definitions
Hearsay is defined by Sections 114 and 115 of the Criminal Justice Act 2003. Section 114(1)
provides that ‘In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if.’ Thus, hearsay is a statement not
made in oral evidence which is adduced as evidence of any matter stated. In R v Twist, Hughes
LJ stated that it is ‘unsurprising’ that the words ‘admissible as evidence of any matter stated’
requires us to ask what it is that a party is seeking to prove. His Lordship noted that the most
communications will contain one or more matters stated, but that this does not necessarily
mean that those matters are the matters which the party seeking to adduce the evidence is
trying to prove:
‘He may sometimes be trying to prove simply that two people were in communication with
each other, and not be concerned with the content at all. On other occasions he may be trying
to prove the relationship between the parties to the communication but not be in the least
concerned with the veracity of the content of it. And there may, of course, be occasions where
what he seeks to prove is that a matter stated in the communications is indeed fact. The
opening words of Section 114 show that it is the last of these situations which engages the
rules against hearsay.’
The word ‘statement’ is widely defined under Section 115(2) to include ‘any representation of
fact or opinion made by a person by whatever means; and it includes a representation made
in a sketch, photofit or other pictorial form’. Thus, a hearsay statement covers both
representations of fact and opinion made by a person.

4
The hearsay provisions only apply to representations made by a person, and do not apply to
representations made by a machine, such as CCTV footage. Any such representations are not
hearsay statements, and thus are admissible as real evidence. Since the representation can be
made by any means, it includes words spoken by a person, a written witness statement by a
person, or any other form of written document, such as a police officer’s notebook, a medical
report, a receipt or a picture or drawing by a person (for instance, a sketch of the suspect). At
common law, the hearsay rule also applied to assertions which were made by physical gesture.
This is illustrated by the case of Chandrasekera v R. Here, the defendant was convicted of
murder. The victim’s throat had been cut, rendering her unable to speak. However, while she
was still conscious, she made gestures which indicated that the defendant had attacked her.
When asked directly whether the defendant had caused her injuries, she nodded. The Privy
Council held that while the evidence of gestures by the victim was hearsay evidence, it was
admissible under an exception to the hearsay rule available under the old common law,
namely that it constituted a dying declaration. Thus, the hearsay rule also applied to assertions
by physical gesture.
The hearsay provisions also only apply to statements which were made for the purpose of (or
if one of the purposes for making the statement was) causing another person to believe the
matter or causing another person to act or a machine to operate on the basis that the matter
is as stated.
There has been a string of cases concerning implied assertions and the meaning of a ‘matter
stated’ under Section 115(3) of the Criminal Justice Act 2003. As stated above, this requires
us to ask what it is that a party is seeking to prove. Under Section 115(3), hearsay evidence is
evidence which is adduced in order to cause another person to believe the matter stated in
the statement (i.e. the truth of its contents), or to cause another person to act (or a machine
to operate) on the basis of that matter. This means that the hearsay provisions only apply to
statements meant as an assertion, and not to implied assertions, thus overturning R v Kearley.
This was confirmed by the Court of Appeal in R v Singh and more recently in R v Twist. The
defendant in R v Singh was charged with conspiracy to kidnap and evidence of calls between
the defendant’s mobile phones and those of his co-conspirators. In particular, the prosecution
adduced evidence of the memories of the mobile phones of the defendant’s co-conspirators,
which contained the defendant’s mobile numbers. The defendant appealed against his
conviction on the grounds that the trial judge was wrong to admit the evidence of the
memories of the mobile phones because these were implied assertions which are
inadmissible, despite the Criminal Justice Act 2003. This argument was rejected by the Court
of Appeal, which held that Sections 114 and 118 of the Criminal Justice Act 2003 abolished
the old common law rule against hearsay and created a new rule. The Court held that the new
law under the Criminal Justice Act 2003 did not extend to implied assertions, and thus, implied
assertions are now no longer hearsay statements and as such are admissible just like any other
evidence in the ordinary course of a trial. The appeal was dismissed, and the defendant’s
conviction was upheld.
This was reiterated by the Court of Appeal in R v Leonard in which Aikens LJ stated: ‘It is clear
from Section 114(1) and Section 118(2) that the common law rules governing the admissibility

5
of hearsay evidence in criminal proceedings are abolished with the exception of the rules
preserved by Section 118 itself. The common law rules are replaced by the statutory code
which governs what is hearsay evidence and when it can be admitted as evidence in criminal
proceedings.’ The defendant was charged with possession of drugs with intent to supply and
two text messages were found on his phone which commented on the quality of the drugs
received by the senders of the text messages. One of the text messages read, ‘Cheers for yday!
Well sound gear: -S! feel wankered today!’ The Court of Appeal held that the messages should
not have been admissible because the senders of the messages intended the defendant to
believe the matters stated in the messages, namely that the drugs supplied were ‘well sound’
and that the sender did ‘feel well wankered today’. However, the Court of Appeal in R v Twist
commented that the result would have been different if the prosecution had instead relied
upon the text messages to show that the relationship between the defendant and the sender
of the messages was one of drug dealer and customer, rather than to prove the quality of the
drugs supplied. The Court in R v Twist held that the evidence would have been admissible as
an implied assertion if the prosecution had sought to rely on the messages to prove that the
defendant was a drug dealer.
In R v MK, the Court of Appeal held that evidence of a phone conversation in which the
defendant was asked about the availability of drugs and prices was not hearsay because the
purpose of the statement was to find out the availability and price of drugs. The evidence did
not contain a representation that the defendant was his supplier, but it did constitute an
implied assertion of this. It was not the caller’s purpose to cause the defendant to believe any
representation, nor to act upon its truth. This approach was approved by the Court of Appeal
more recently in R v Twist. In the case of R v Chrysostomou, the Court of Appeal also held that
implied assertions are not caught by the hearsay provisions under the Criminal Justice Act
2003. The prosecution sought to adduce text messages which had been found on the
defendant’s mobile phone as evidence of the defendant’s bad character, namely that he was
a drug dealer. There were four text messages which read: ‘Mate can you get me a henry in for
Thursday? I will be on Wednesday’, ‘Can I meet you about mid-day ish tomorrow for henry?
Ta mate and is it still £100?’, ‘Morning mate, I need 7g will you do it for 200’ and ‘If your about
sometime today with any stuff on you can you let me know, ta’. The Court of Appeal held that
these text messages were admissible as evidence that the defendant was a drug dealer. The
Court provided the approach which should be taken to determining the admissibility of a
statement which was not given in oral evidence in the proceedings and held that there were
three preliminary questions which needed to be asked:
1. Is the evidence relevant?
2. If so, is the evidence a ‘statement’ within the meaning of Section 115(2) of the Criminal
Justice Act 2003?
3. If so, what is the purpose for adducing the statement in evidence?

In this case, it was not disputed that the statements were relevant and the court accepted
that the evidence constituted ‘statements’ under Section 115(2). However, the purpose of the
prosecution in adducing the statements was not to prove any matter stated within them,

6
rather the statements were an implied assertion, requiring the jury to infer from the text
messages that the defendant was a drug dealer. Since the statements were implied assertions,
they were not caught by the hearsay provisions under the Criminal Justice Act 2003, and they
were admissible. The Court of Appeal doubted the decision of the House of Lords in R v
Kearley.
Most recently, in R v Twist, the Court of Appeal provided guidance on the way in which the
Criminal Justice Act 2003 provisions apply to communications made to, or by, the defendant.
The Court preferred that the phrase ‘implied assertion’ be avoided. The decision of the Court
of Appeal involved four cases which were heard together which all involved text messages
sent by mobile telephones, although the Court was keen to state that the principles in the
decision apply equally to all forms of communication. The text messages in two of the cases
consisted of requests to supply drugs to the sender (where an intention to supply drugs
needed to be established for a conviction), and in one case of a request for a gun to be
delivered to the sender (in a case of robbery involving a firearm). The fourth case differed in
that the text messages relied on were messages sent by the defendant to the complainant.
This was a case of rape in which the defendant made admissions which the prosecution sought
to rely on to establish that there had been a rape. The Court confirmed again that the Criminal
Justice Act 2003 abolished the common law rules of hearsay, except where it was expressly
preserved under Section 118. The Court stated that hearsay evidence was generally
inadmissible unless it qualified for admission under one of the paragraphs under Section
114(1). It is important to determine two factors:
1. The purpose for which the relevant party seeks to admit the evidence, and
2. The purpose of the maker of the statement.

Where the party sought to prove the truth of a matter stated in the statement and one of the
purposes of the maker of the statement was that the recipient or another person should
believe the matter stated or act upon it as if it were true, then the evidence would qualify as
hearsay and its admissibility would be subject to Section 114(1). Where the evidence is not
hearsay, then the usual tests of admissibility must be applied, and the evidence must first be
deemed to be relevant. The evidence of text messages in this case was not hearsay and was
admissible in evidence.
Thus, in order to determine whether a piece of evidence is hearsay, the relevant fact which
the party seeks to prove must first be identified, it must then be asked whether there is a
statement of that matter in the communication in question. If so, it must be established
whether the evidence is adduced as evidence of any matter stated, i.e. one of the purposes
of the maker of the statement is that a person should believe the matter or act upon it.

7
Admissibility
Having determined that a piece of evidence is hearsay, the next question to be determined is
whether that hearsay is admissible in court. In R v Riat, the Court of Appeal suggested that
there are six successive steps to determining the admissibility of hearsay evidence.
The statutory framework provided for hearsay evidence by the CJA 2003 can usefully be
considered in these successive steps:
1. Is there a specific statutory justification (or ‘gateway’) permitting the admission of
hearsay evidence (Sections 116-118)?

2. What material is there which can help to test or assess the hearsay (Section 124)?

3. Is there a specific ‘interests of justice’ test at the admissibility stage?

4. If there is no other justification or gateway, should the evidence nevertheless be

considered for admission on the grounds that admission is, despite the difficulties, in
the interests of justice (Section 114(1)(d))?

5. Even if prima facie admissible, ought the evidence to be ruled inadmissible (Section 78
of the Police and Criminal Evidence Act 1984 and/or Section 126 CJA 2003)

6. If the evidence is admitted, then should the case subsequently be stopped under
Section 125?

Section 114(1) governs the admissibility of hearsay evidence in criminal proceedings. As stated
above, while the ‘default’ position under the Criminal Justice Act 2003 is that hearsay evidence
is inadmissible, the wording of the Act presents a positive, inclusionary approach to the
admission of hearsay evidence. Thus, there are four main circumstances in which hearsay
evidence is deemed to be admissible. According to Section 114(1), hearsay evidence is
admissible if one of the four paragraphs (a) to (d) is satisfied.
➢ Section 114(1)(a): It is admissible under Section 116 or Section 117.
➢ Section 114(1)(b): It falls under a common law exception preserved by Section 118.
➢ Section 114(1)(c): All parties agree.
➢ Section 114(1)(d): It is in the interests of justice.

It should be noted that the paragraphs are not mutually exclusive; thus, an application to
adduce hearsay evidence might be made under more than one paragraph, and a judge might
determine that hearsay evidence is admissible under more than one of these paragraphs.

8
Admissibility under Section 114(1)(a): Statutory Admissibility
Under Section 114(1)(a) of the Criminal Justice Act 2003, hearsay evidence is admissible if it
is admissible by virtue of Section 116 or Section 117 of the Act. Section 116 provides for the
admissibility of the evidence of a witness who is unavailable to give evidence. Section 117
provides for the admissibility of a business document.

Unavailable Witnesses under Section 116

Sometimes a witness to a criminal offence who makes a statement at the time of the incident
may not be available to give evidence by the time of the trial, many months later. As the party
calling the witness would seek to adduce this evidence in order to prove the truth of what was
contained within the statement, the witness statement is hearsay evidence. Where a witness
later becomes unavailable, the party seeking to rely on the evidence of the witness might
make an application to adduce the witness’s written statement in court in place of calling the
witness. The witness’s written statement, made around the time of the incident, could be read
out in court if the trial judge deems it to be admissible. Where the prosecution makes an
application to adduce the witness statement of an unavailable witness under Section 114(1),
the admissibility of the evidence in the witness statement might be so important to the
prosecution case that without it the prosecution case might be much weaker, or even so weak
that the case cannot be successfully prosecuted.
The defence interest in the statement being deemed inadmissible must also be considered.
Where a witness statement is simply read out, the defence will find it very difficult, if not
impossible, to challenge matters raised in the statement. The judge must weigh these
competing interests and other factors in deciding whether the hearsay evidence is admissible
or not.
Section 116(1) provides that hearsay evidence is admissible if three circumstances are
satisfied:
➢ The hearsay evidence must be evidence which would be admissible in oral evidence if
the maker of the statement was available (Section 116(1)(a)).

➢ The maker of the statement is identified to the court’s satisfaction (Section 116(1)(b)),
and

➢ The witness is unavailable due to one of the five conditions under Section 116(2)
(Section 116(1)(c)).

9
The five conditions of unavailability require that the witness is unavailable because either:
➢ The witness has died,

➢ The witness is unfit to be a witness due to his bodily or mental condition,

➢ The witness is outside the United Kingdom, and it is not reasonably practicable to
secure his attendance at court,

➢ The witness cannot be found despite taking reasonable steps to find him, or

➢ Leave of the court is given due to the witness’s fear.

Section 116(2)(a): Witness has died

The condition under Section 116(2)(a) of the Criminal Justice Act 2003 does not require much
elaboration. Where the maker of the statement is no longer alive, then another person may
give evidence of the statement made by the deceased in order to establish that what the
deceased said was true. This provision marked an extension of the old common law under
which only a witness’s ‘dying declaration’ was admissible as an exception to the rule against
hearsay. Dying declarations were a very narrow exception under which the deceased’s
statement had to relate to the cause of his death, and it was only admissible if the prosecution
could prove that at the time of making the statement, the deceased had a ‘settled, hopeless
expectation of impending death’. The provision under Section 116(2)(a) is much wider than
this, allowing for the admission of a statement made by the deceased about any subject
matter and without any requirement of an expectation of death. Provided that oral evidence
of the matter would be admissible had the witness been in court and the deceased is
identified, then the statement made by the deceased will be admissible under Section 116(1).

R v Musone
Here, the prosecution sought to adduce evidence of a prisoner’s dying declaration (‘Musone’s
just stabbed me’) to a fellow prisoner. The evidence was held to be admissible under Section
116(1).

10
Section 116(2)(b): Witness is unfit by reason of bodily or mental condition
The condition under Section 116(2)(b) requires that the witness is unfit to be a witness due to
a bodily or mental condition.

R v Loveridge
The court found the witness to be physically unfit to testify due to a risk of heart attack,
thereby allowing the hearsay evidence under Section 116(1).

Section 116(2)(c): Witness is outside the United Kingdom

The condition under Section 116(2)(c) requires that the witness is outside the United
Kingdom, and it is not reasonably practicable to secure his attendance. The condition under
Section 116(2)(c) will not be satisfied if the fact that the witness is outside the United Kingdom
and it is not reasonably practicable to secure his attendance is attributable to the party seeking
to adduce the statement of the witness in evidence or if it is attributable to a person acting
on that party’s behalf, in order to prevent the witness from giving evidence. Thus, the
statement of the witness will be inadmissible.

Section 116(2)(d): Witness cannot be found

The condition under Section 116(2)(d) requires that the witness cannot be found although
such steps as it is reasonably practicable to take to find him have been taken.

Section 116(2)(e): Fear of the witness

The condition under Section 116(2)(e) requires that the witness does not give evidence
through fear and the court gives leave for the statement to be read in evidence. This provision
is intended to prevent the fear of a witness from affecting the admissibility of their evidence.
Thus, where a witness is afraid, the court can permit their witness statement to be read in lieu
of them attending court to give evidence.
Section 116(3) provides some guidance on the interpretation to be given to the meaning of
‘fear’, stating that ‘fear’ is to be widely construed.
Section 116(3) specifies that fear includes fear of the death or injury of a person or fear of
financial loss, but the use of the word ‘includes’ shows that this list is not exhaustive.
According to this partial definition, ‘Section 116(3) covers situations where the witness is in
fear as a result of threats of death or of injury to himself or another person, or as a result of
threats which would result in financial loss, such as threats of damage to property. It has been
suggested that “fear” under Section 116(3) is so broad that it could even extend to “the
consequences of committing perjury”; the suggestion being that a witness who has already

11
lied in their witness statement might rely on their fear that they could be prosecuted for
perjury and could loser their job as a result would fall within the section. The Law Commission
stated that it would be wrong for a witness who is merely afraid of being prosecuted from
benefitting from Section 116(2)(e), but the Commission felt it necessary to include specific
provision to exclude this since no court would think it in the ‘interests of justice’ that the
witness’s statement be admitted in such circumstances. Thus, the safeguard within Section
116(4) would enable the judge to refuse to grant leave in these circumstances, preventing the
admission of the evidence.
In order to rely on Section 116(2)(e) as a basis for the admissibility of hearsay evidence under
Section 114(1)(a), the party seeking to rely on the evidence must apply for leave of the court.
This is the only provision for which leave must be formally granted before the evidence can
be adduced in court. In deciding whether or not to grant leave, Section 116(4) provides that
the court may only grant leave if it considers that the statement ought to to be admitted in
the interests of justice, having regard to a number of factors in Section 116(4)(a) to (d), namely,
(a) To the statement’s contents,

(b) To any risk that its admission or exclusion will result in unfairness to any party to the
proceedings (and in particular to how difficult it will be to challenge the statement if
the relevant person does not give oral evidence),

(c) In appropriate cases, to the fact that a special measures direction could be made in
relation to the relevant person, and

(d) To any other relevant circumstances.

These factors listed under Section 116(4) need only be considered if the application to adduce
the hearsay evidence is based upon the fear of an unavailable witness under Section 116(2)(e).
Fear is to be subjectively assessed, so the crucial question is whether the witness himself was
in fear, not whether his fear was reasonable. In deciding whether a hearsay statement is
admissible under Section 116(2)(e) by virtue of the fact that he will not give oral evidence
through fear, there have been a number of recent decisions in the Supreme Court and Court
of Appeal which suggest that a strict approach should be taken.

Al-Khawaja and Tahery v United Kingdom

12
Business documents under Section 117
Under Section 114(1)(a) of the Criminal Justice Act 2003, hearsay evidence may be admissible
under either Section 116 (unavailable witnesses) or under Section 117 of the Act. Section
117(1) of the Act provides for the admissibility of business documents or other documents.
Section 117(1) of the 2003 Act provides that hearsay evidence is admissible if three
circumstances are satisfied:
➢ The hearsay evidence must be evidence which would be admissible in oral evidence
as evidence of that matter (Section 117 (1)(a)),

➢ The requirements under Section 117(2) are satisfied (Section 117(1)(b)), and

➢ The requirements under Section 117(5) are satisfied in a case involving a document
prepared for pending or contemplated criminal proceedings (Section 117(1)(c)).

The requirements under Section 117(2) state that the document must have been 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, and that the person who supplied the information in the
statement had or may reasonably be supposed to have had personal knowledge of the matters
dealt with.
Section 117(3) states that the person who created or received the document in Section
117(2)(a) and the person who supplied the information contained in the statement in Section
117(2)(b) may be the same person. Where the information in the statement has passed
through more than one person, then Section 117(2)(c) requires that each person received the
information in the course of a trade, business, profession or other occupation, or as the holder
of a paid or unpaid office. Thus, Section 117 allows for the admissibility of multiple hearsay
evidence, i.e. hearsay evidence that has passed through a number of people.
Under Section 117(4), there is a further requirement where the document was prepared for
the purposes of pending or contemplated criminal proceedings or for a criminal investigation.
In these circumstances, the requirements in Section 117(5) must also be satisfied. These are
that the witness is unavailable due to any of the conditions in Section 116(2)(e), or the witness
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 other
circumstances.
However, where the court has concerns about the reliability of the statement, due to its
contents, the source of the information contained in it, or 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 was created or received, it may make a direction under
Section 117(7) that the statement is unreliable. In such circumstances, the statement would
not be admissible by virtue of Section 117(6).

13
Admissibility under Section 114(1)(b): The Common Law
Under Section 114(1)(b) of the Criminal Justice Act 2003, hearsay evidence is admissible if it
is admissible under one of the common law rules preserved by Section 118 of the Act. Section
118(2) abolishes the common law rules on the admissibility of hearsay evidence, except for
those rules preserved by Section 118(1). Section 118(1) preserves a specific list of eight
common law rules governing the admissibility of hearsay evidence in criminal proceedings.
➢ Public information
➢ Reputation as to character
➢ Reputation or family tradition
➢ Res gestae
➢ Confessions
➢ Admissions by agents
➢ Common enterprise
➢ Expert evidence

Res gestae
Res gestae statements are statements which are made so closely connected with a particular
event that the possibility of the statement being a lie or a mistaken statement are minimal.
Res gestae statements are admissible hearsay evidence because they are more likely to be
reliable than other hearsay statements.
There are three types of res gestae statement. These are:
➢ Spontaneous statements (‘excited utterances’)
➢ Statements accompanying an act
➢ Statements relating to a physical sensation or a mental state

Spontaneous statements
Spontaneous statements are statements which are made by a person who was so emotionally
overpowered by an event that the possibility of concoction or distortion can be disregarded.
Such statements are often referred to as ‘excited utterances’.

R v Andrews
The victim was attacked after someone knocked on the door to his flat and he answered it.
Having been wounded, he went to the flat below for help. When the police arrived, the victim
informed the officers that one of his attackers was called ‘Donald’. As the victim died from his
wounds, the police officers were called to give evidence of this statement. The trial judge,
Court of Appeal and House of Lords held that while this evidence was hearsay, it was
admissible as a res gestae statement.

14
Lord Ackner delivered the leading opinion in the House of Lords. His Lordship stated that a
trial judge faced with an application to admit evidence under the doctrine of res gestae must
first ask himself whether the possibility of concoction or distortion can be disregarded. In
order to answer this question, the judge must first consider the circumstances in which the
statement was made in order to determine whether the event was sufficiently spontaneous.
This will require the judge to question whether the event was still operating at the time of the
statement and whether it dominated the thoughts of the victim, such that his statement was
an instinctive reaction and there was no real opportunity for reasoned reflection.

Common enterprise
This rule provides that where one party to a common enterprise makes a statement, the
common law relating to that statement applies.
The statement is admissible against another party to that enterprise as evidence of any matter
stated therein. The statement must have been made in furtherance of the common enterprise
and in the course of the enterprise. However, the statement may not be used as evidence of
another party’s participation in the common enterprise without independent evidence of that
fact.

Admissibility under Section 114(1)(c): All Parties Agree

This provision is self-explanatory. Where all the parties to the proceedings agree that the
hearsay evidence should be admissible, then it may be admitted under Section 114(1)(c) of
the Criminal Justice Act 2003.

Admissibility under Section 114(1)(d): Interests of Justice

The final way in which a hearsay statement may be admitted in court is under Section
114(1)(d) of the Criminal Justice Act 2003, which provides for the admissibility of a hearsay
statement where it would be in the interests of justice that the statement be admitted. This
section provides the judge with a discretion to include hearsay evidence where it is not caught
by one of the other paragraphs under Section 114(1). As such it is often referred to as the
‘safety valve’ provision.
Sections 114(1)(a) to (d) are alternatives, so a party must seek to make an application to
adduce hearsay evidence under more than one of the paragraphs under Section 114(1). As
such, he may decide to make a second, alternative application under Section 114(1)(d) is
available in law for all types of hearsay, and any party to criminal proceedings may rely on this
inclusionary discretion in an application to the court.
In deciding whether to admit hearsay evidence under Section 114(1)(d), the court must have
regard to the factors set out in Section 114(2).

15
While, in practice, counsel may make an application to adduce hearsay on more than one
ground, the Court of Appeal has been keen to warn judges to be careful in the application of
the inclusionary discretion under Section 114(1)(d) of the Criminal Justice Act 2003.

RvZ
The Court of Appeal warned that Section 114(1)(d) is to be cautiously applied, since otherwise
the conditions laid down by Parliament in Section 116 would be circumvented.

Multiple Hearsay
Section 121 of the Criminal Justice Act 2003 provides an additional requirement for the
admissibility of multiple hearsay. Multiple hearsay is a hearsay statement that has passed
through a number of people, such that the maker of the original statement and the person
wishing to give evidence of that statement are quite removed. For obvious reasons, such
evidence is more unreliable than first-hand hearsay, and, as such, the Criminal Justice Act 2003
imposes an additional requirement before it is admissible in court.
Multiple hearsay is excluded under Section 121(1) unless one of three exceptions in Section
121(1)(a) to (c) applies:
(a) Either of the statements is admissible under Sections 117, 119 or 120,
(b) All parties to the proceedings so agree, or
(c) The court is satisfied that the value of the evidence in question, taking into account
how reliable the statements appear to be, is so high that the interests of justice require
the latter statement to be admissible for that purpose.

Safeguards
There are three further safeguards which are set out in separate provisions; these are
designed to ensure, as far as it is possible to do so, that the hearsay evidence which is admitted
under Section 114(1) is reliable. Under Section 124, evidence may be adduced to challenge
the credibility of the maker of a statement who does not appear as a live witness in court.
Under Section 125, the trial judge has the power to stop a case and order an acquittal or a
retrial where, after the close of the prosecution case, the case is based wholly or partly on a
hearsay statement and the evidence is important in the case and is so unconvincing that a
conviction would be unsafe. Finally, under Section 126(1), the trial judge has a discretion to
exclude hearsay evidence 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, taking account of the value of the evidence. Despite its
heading, ‘court’s general discretion to exclude evidence’, the discretion to exclude under
Section 126(1) is relatively narrow in scope since it applies where the value of the evidence is
substantially outweighed by the undue waste of time that its admission would cause. This is

16
further supported by Section 126(2) which expressly preserves the discretion to exclude
evidence under Section 78 of the Police and Criminal Evidence Act 1984 and at common law.

17