Principles and procedures to admit and exclude evidence - De...

Learning Outcomes

This article outlines the definition, admissibility, procedural requirements, safeguards, and exclusionary powers governing hearsay evidence in criminal proceedings under the Criminal Justice Act 2003, including:

• Precise definition of hearsay evidence, first-hand versus multiple hearsay, and the concept of "matter stated"
• Burden and standard of proof for hearsay admissibility and decision-makers in Crown Court and magistrates' courts
• Statutory gateways under s.114 CJA 2003 and their requirements, with emphasis on s.116 (unavailable witnesses) and s.117 (business documents)
• Preserved common law exceptions under s.118 CJA 2003, particularly res gestae and confessions, their relevance and limitations
• Court powers to exclude hearsay under s.78 PACE 1984, s.125 and s.126 CJA 2003, and broader case management considerations (including Article 6 ECHR)
• Notice and procedural requirements for hearsay evidence and implications of non-compliance
• Risks, safeguards, and consequences of the admission or exclusion of hearsay evidence in criminal litigation

SQE1 Syllabus

For SQE1, you are required to understand the rules governing the definition, admissibility, procedures, and safeguards for hearsay evidence in criminal proceedings, with a focus on the following syllabus points:

• Proper definition and identification of hearsay evidence in criminal cases
• The general exclusion of hearsay: its rationale and exceptions
• All four main statutory gateways for admitting hearsay under s.114(1) CJA 2003, especially ss.116 (unavailable witness) and 117 (business documents)
• Preserved common law exceptions under s.118 CJA 2003 (including res gestae and confessions)
• Notice and procedural rules for admitting and opposing hearsay, including timing and content requirements
• The burdens and standards of proof for hearsay admissibility
• The roles and powers of the court and parties regarding the admission and exclusion of hearsay, including s.78 PACE and s.126 CJA 2003
• The relationship of hearsay evidence to Article 6 ECHR fair trial rights

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is hearsay evidence in criminal proceedings, and how is "matter stated" distinguished?
2. Which statutory gateways permit the admissibility of hearsay evidence under the CJA 2003?
3. In what circumstances can a statement made by an unavailable witness be used as evidence at trial?
4. What is the "res gestae" exception, and what safeguards are in place against hearsay admitted in this way?

Introduction

Hearsay evidence is one of the key issues in criminal trials, with strict rules governing its admissibility due to the potential for unfairness and the fundamental importance of the right to a fair trial (reflected in Article 6 ECHR). The modern statutory regime under the CJA 2003 builds on prior case law and statutory developments and establishes a comprehensive code for when and how hearsay may be admitted, who bears the burden of proof, what safeguards must be satisfied, and how disputed questions are decided.

A criminal lawyer must understand these provisions to advise effectively on the admission or exclusion of contested evidence, to ensure that the proceedings respect both substantive justice and procedural fairness.

Definition of Hearsay Evidence

Key Term: Hearsay
Hearsay is a statement not made in oral evidence in the proceedings, that is relied upon as evidence of a matter stated in it (CJA 2003, s.114(1)).

A "statement" here means any representation of fact or opinion made by a person, whatever its form or medium, and includes written, oral, non-verbal, or pictorial expressions.

Key Term: Statement
Any representation of fact or opinion made by a person by whatever means (oral, written, pictorial, conduct indicating belief, etc.) (CJA 2003, s.115(2)).

A statement is only hearsay if it is adduced to prove the truth of the matter stated, i.e., to show that the facts contained in the statement are true and not merely to show that the statement was made, or to prove a background fact.

Key Term: Matter Stated
A matter stated for hearsay purposes is one where the purpose, or one of the purposes, of the person making the statement was to cause another to believe it or to act upon it as true (CJA 2003, s.115(3)).

It is not enough that a statement is made out of court; it must also be adduced to show that what it asserts is true. For example, a witness saying "Ben told me he saw the defendant at the scene" is hearsay if adduced to prove the defendant was indeed at the scene.

The law distinguishes between first-hand hearsay (the statement is made by the actual witness and is being repeated by someone else) and multiple hearsay (the information is passed through two or more people).

Evidence is not hearsay if it is not adduced for the truth of its contents but, for example, merely to explain the reasons for a police investigation or to prove the speaker’s state of mind.

The General Rule Against Hearsay

The traditional rule in criminal law is that hearsay is inadmissible, except where a clear exception applies. The rule’s rationale is that the original statement was not made under oath at the trial, the maker is not before the court for cross-examination regarding its veracity and credibility, and the court cannot directly observe their demeanour or assess the context in which the statement was made.

This aims to reduce the risks of unreliability, misinterpretation, fabrication, and distortion, thereby protecting the fairness of the proceedings.

Gateways for Admitting Hearsay Evidence

Section 114(1) CJA 2003 sets out four exclusive gateways by which hearsay may be admitted as evidence of the truth in criminal trials:

• a statutory provision makes it admissible (e.g., s.116 for unavailable witness; s.117 for business documents)
• a preserved common law exception applies (s.118, e.g., res gestae, public documents, confessions)
• all parties to the proceedings agree to its admission
• the court is satisfied that it is in the interests of justice to admit the hearsay statement

Statutory Gateways

Unavailable Witnesses (s.116 CJA 2003)

Section 116 CJA 2003 allows certain first-hand hearsay statements to be admitted if the witness is unavailable for one of five limited reasons:

• death (witness has died)
• unfit by reason of bodily or mental condition (e.g., severely ill, mentally unfit to testify)
• outside the United Kingdom and not reasonably practicable to secure their attendance
• cannot be found despite taking such steps as are reasonably practicable
• cannot give evidence due to genuine fear (only with the court's leave, and special consideration must be given to whether the admission of evidence is in the interests of justice)

Key Term: Unavailable Witness
A person who cannot give oral evidence in court due to death, incapacity, absence abroad, not being found after reasonable attempts, or fear (CJA 2003, s.116(2)).

For this statutory exception to apply, the following additional requirements must be met:

• The statement must be one that would have been admissible as oral evidence by the maker.
• The maker of the statement must be identified to the court’s satisfaction.
• The court must be satisfied as to the reason for non-availability.

The statement must also be "first-hand" hearsay, i.e., relating to something that the unavailable witness perceived directly, not passed on from a third party.

Section 116 is not available where the unavailability of the witness was caused by the party seeking to introduce the statement in order to create a hearsay situation; nor does it apply where some other reliable statutory exception applies.

Worked Example 1.1

A witness gives a statement to the police about witnessing a robbery but later emigrates outside the UK and cannot reasonably be required to return for trial. Can the statement be admitted?

Answer:
Yes, if the court is satisfied that reasonable steps were taken to secure the witness’s attendance and that it is not reasonably practicable for them to be present, and provided all other requirements are satisfied, the statement may be admitted as hearsay under s.116.

Business Documents (s.117 CJA 2003)

Section 117 CJA 2003 provides a gateway for the admission of documentary hearsay evidence where the statement forms part of a business document and the document (or copy) is produced. The conditions for admissibility are:

• The document must have been created or received in the course of a trade, business, profession, or office, or as part of a public office function.
• The information within the document must be supplied by a person with, or reasonably supposed or believed to have, personal knowledge of the matter.
• For documents prepared for criminal proceedings or in contemplation of criminal proceedings, the person who made the statement or produced the document must be unavailable (as per s.116 grounds) or cannot reasonably be expected to remember the matter.

Key Term: Business Document
Any document created or received in the course of business, trade, profession, or office, containing information from a person with, or reasonably supposed to have, personal knowledge of the matters stated (CJA 2003, s.117(2)).

Documents solely created for criminal proceedings are subject to additional scrutiny.

Exam Warning

If a business document was prepared for the purpose of criminal proceedings, the document is only admissible as hearsay if the maker is unavailable under s.116 CJA 2003 or cannot reasonably be expected to recall the matters (s.117(4)-(5)). This is designed to prevent parties from manufacturing evidence.

Multiple Hearsay

Section 121 CJA 2003 restricts "multiple hearsay" (where information passes through more than one person) except where:

• multiple hearsay is admissible under s.117 (business documents)
• a preserved common law exception applies
• all parties agree
• the court admits the evidence in the interests of justice

The requirements for admitting multiple hearsay are stricter, and the court will consider whether the chain of communication adversely impacts reliability.

Preserved Common Law Exceptions (s.118 CJA 2003)

The CJA 2003 preserves certain common law exceptions to the hearsay rule that historically rested on necessity or reliability. The principal preserved exceptions are:

• Public documents of a legislative, administrative, or judicial nature
• Res gestae (spontaneous statements)
• Confessions
• Admissions by agents
• Statements made in furtherance of a common purpose/higher criminal enterprise
• Statements made by experts as part of their evidence
• Relationships of pedigree, reputation, and others not commonly encountered

Among these, the res gestae rule and the confession exception are most frequently encountered.

Key Term: Res Gestae
A statement made during, or immediately after, a startling or dramatic event, when the maker was so dominated by the event that the possibility of fabrication is negligible. The rationale is that spontaneity or stress reduces the risk of unreliable invention.

The court must be satisfied that:

• There was a sufficiently startling or overwhelming event.
• The statement was made contemporaneously with the event.
• The maker was under such pressure that fabrication can be discounted.

Key Term: Confession
A statement by a person which is wholly or partly adverse to their case (which can include mixed admissions and denials), regardless of whether it is made to a person in authority or not, and whether made orally, in writing, or otherwise (PACE 1984, s.82(1)).

Confessions are a unique category, with admissibility subject to specific rules regarding voluntariness and reliability (see below).

Worked Example 1.2

During an armed robbery, the victim exclaims, "He’s got a gun!" while the robber is fleeing. The victim later dies. Can a bystander testify as to the victim’s comment?

Answer:
Yes, this is hearsay if adduced to show the robber had a gun, but it is likely to be admitted under the res gestae exception, as the statement was made spontaneously and under acute stress, leaving no real opportunity for fabrication.

Agreement of All Parties (s.114(1)(c) CJA 2003)

Where all parties to the proceedings agree that a statement may be admitted as hearsay, the court will generally allow its admission. This typically applies to uncontested or technical parts of the prosecution case, avoiding unnecessary attendance of witnesses.

Interests of Justice (s.114(1)(d) CJA 2003)

This discretionary gateway enables the court to admit a hearsay statement if it is satisfied that it is in the interests of justice for it to be admissible—and that no other statutory or preserved common law gateway can be used. S.114(2) CJA 2003 lists factors the court must consider, including:

• How much probative value the evidence has to an issue in the case
• What other evidence is available
• The importance of the matter in the case context
• The circumstances and reliability of the statement
• Whether the statement can be challenged by other means
• The difficulty for the opposing party in challenging the evidence
• The risk of unfair prejudice

This "safety valve" should be reserved for cases of genuine necessity, not to be used as a backdoor for circumventing the main statutory or preserved exceptions.

Worked Example 1.3

A key prosecution witness’s only available statement is a voice message left on the day of an alleged assault, but the witness has become untraceable. Can the prosecution rely on the message under the interests of justice gateway?

Answer:
Possibly, if all reasonable steps have been taken to locate the witness, and the statement's reliability and necessity are high. However, the court must scrutinise the statement's probative value and consider if a fair trial can still take place, particularly whether the statement can be tested through cross-examination or contextual evidence.

Burden and Standard of Proof—Hearsay Evidence

The burden of proof for proving the admissibility of contested hearsay evidence falls on the party seeking to adduce the hearsay. This party must satisfy the judge (or magistrates) on the balance of probabilities that the conditions in the relevant gateway are met. For example, if the prosecution wants to admit a statement from an unavailable witness, they must prove the basis for non-attendance under s.116 CJA 2003.

On the other hand, where admissibility is disputed (for instance, the defence challenges a business record), the court decides the preliminary question in a "voir dire" (i.e., a hearing of law and fact conducted by the judge, excluding the jury). Questions of fact regarding the reason for unavailability, identity of a maker, or whether a gateway is satisfied are, in the Crown Court, decided solely by the judge.

In magistrates' courts, the bench determines both law and fact.

Procedures and Notice for Admitting Hearsay

When a party seeks to introduce hearsay evidence under s.114(1)(d), s.116, or s.117 CJA 2003 (or multiple hearsay via s.121), procedural rules require timely notice to the court and all other parties. The Criminal Procedure Rules (CrimPR) set strict deadlines and require the party to identify the evidence and specify the gateway relied upon, with sufficient supporting facts. Failure to give proper notice may lead to exclusion of the evidence or adjournment.

If a party objects to the proposed hearsay, they must apply to court within prescribed time limits, setting out the grounds for objection, which may include unfair prejudice or failure to meet the necessary conditions. The court may determine the issue on the papers or at a preliminary hearing, ensuring all parties have a fair opportunity to be heard.

Excluding Hearsay Evidence

Even if hearsay evidence satisfies a statutory or common law gateway, the court has residual powers to prevent unfairness by excluding that evidence.

Discretionary Exclusion under s.78 PACE 1984

Key Term: Section 78 PACE 1984
A statutory power allowing the court to refuse to admit prosecution evidence—including hearsay—if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Section 78 PACE 1984 is a broad, discretionary power available only to the defence against prosecution evidence. The court will consider:

• The circumstances in which the evidence was obtained
• The risk of misleading the jury or unduly prejudicing the defendant
• The prejudice to the defendant’s ability to challenge or test the evidence

Common grounds for exclusion include significant and substantial irregularities in the taking of a statement, non-compliance with procedural requirements, or unreliability of the out-of-court assertion.

Exclusion under CJA 2003 (ss.125 and 126)

• Section 126 CJA 2003: The court may refuse to admit a hearsay statement, or exclude it, if the case for exclusion (e.g., risk of unfair prejudice to the accused) substantially outweighs the case for admission when considering the value and reliability of the statement.
• Section 125 CJA 2003: If a case against an accused is based wholly or mainly on hearsay, and the evidence is unconvincing—as to the accused’s guilt—the judge must stop the case at the end of the prosecution evidence.

These powers support the principle that the ultimate test for the admission of hearsay is fairness in the proceedings and the reliability of the prosecution case.

Worked Example 1.4

The prosecution’s case depends entirely on a single hearsay statement from a witness who later recants and refuses to attend court. The defence challenges the reliability of both the statement and the original process. What may the court do?

Answer:
If the court considers the evidence unconvincing and the case is based mainly or wholly on hearsay, under s.125 CJA 2003, the judge may direct an acquittal or withdraw the case from the jury. Alternatively, under s.126, the court may exclude the statement if the risk of prejudice and injustice outweighs the probative value or necessity of admitting it.

Safeguards and Article 6 ECHR

The rules for admitting and challenging hearsay evidence are framed with Article 6 ECHR (right to a fair trial) in mind. Admitting untested or unreliable hearsay may risk breaching the defendant’s fair trial rights. The court must carefully balance any denial of the right to confrontation and cross-examination with the necessity of upholding justice, particularly in cases involving vulnerable or absent witnesses.

The judge must instruct the jury, especially where an important issue is proved by untested hearsay, to give proper weight to the evidence and to consider its reliability, noting that the defendant could not challenge the maker in court.

Relationship to Other Evidence—Confession and Opinion

Confessions and mixed statements are a noted exception to the hearsay rule (PACE 1984, s.82(1); CJA 2003, s.118(1)). They are admissible subject to their own regime (PACE 1984, s.76), which focuses on reliability, voluntariness, and the absence of oppression.

Key Term: Confession
A statement made by a person that is wholly or partly adverse to themselves, regardless of to whom, or the manner of communication. The statement must be relevant and is subject to specific exclusionary powers if obtained by oppression or is unreliable.

Similarly, opinion evidence (apart from certain areas such as expert testimony) is generally inadmissible at trial. However, expert reports or evidence prepared in accordance with statutory requirements may contain hearsay which is separately admissible via preserved exceptions.

Summary

Hearsay evidence is generally inadmissible in criminal trials as a safeguard against unreliable or untestable assertions about key facts. Exceptions set out by the CJA 2003 permit hearsay where justified by necessity, reliability, or the general interests of justice. The most common statutory exceptions are for unavailable witnesses (s.116) and business documents (s.117). Additional gateways include preserved common law exceptions (notably, res gestae and confessions), express agreement between all parties, and the judicial "interests of justice" discretion.

The court always retains powers—by statute, procedure, and under s.78 PACE—to exclude hearsay if it would undermine the fairness of the proceedings. The general thrust of the regime is to ensure that only reliable evidence is admitted and that the defendant’s rights are preserved, especially the right to confront witnesses and put the prosecution’s case to rigorous scrutiny.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is an out-of-court statement adduced as evidence of the truth of its content.
• There is a default rule against hearsay in criminal proceedings, reflecting risks of unreliability, the absence of cross-examination, and challenges to fairness.
• Admissibility is provided through statutorily defined gateways (CJA 2003, s.114), primarily s.116 (unavailable witness) and s.117 (business documents).
• Common law exceptions preserved include res gestae and confessions, both with detailed requirements and safeguards.
• The "interests of justice" gateway is a catch-all, subject to tightly circumscribed statutory safeguards.
• The burden of proof for establishing a hearsay gateway falls on the party seeking to admit the evidence. Questions of admissibility are for the judge.
• Notice and procedural rules are important for admitting and challenging hearsay—failure can bar evidence.
• Even where a gateway is met, the court can and should exclude hearsay evidence using its discretionary powers (s.78 PACE, s.125 and s.126 CJA 2003) whenever fairness or reliability is in doubt.
• Hearsay involving confessions is governed by its own framework, and admissibility must be considered with reference to s.76 PACE.

Key Terms and Concepts

• hearsay
• statement
• matter stated
• unavailable witness
• business document
• res gestae
• confession
• Section 78 PACE 1984