Principles and procedures to admit and exclude evidence - Definition and admissibility of hearsay evidence

Learning Outcomes

After reading this article, you will be able to define hearsay evidence for criminal proceedings, explain the main statutory and common law gateways for its admissibility, and identify the court’s powers to admit or exclude hearsay. You will also be able to apply these principles to SQE1-style MCQs and scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures for admitting and excluding evidence in criminal trials, with a focus on hearsay. In your revision, pay particular attention to:

  • the definition of hearsay evidence under the Criminal Justice Act 2003 (CJA 2003)
  • the general rule excluding hearsay and its rationale
  • the statutory gateways for admitting hearsay (especially s.116 and s.117 CJA 2003)
  • preserved common law exceptions (such as res gestae)
  • the court’s discretion to admit hearsay in the interests of justice
  • procedures for admitting and excluding hearsay, including exclusion under s.78 Police and Criminal Evidence Act 1984 (PACE 1984)

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?
  2. Name two statutory gateways for admitting hearsay evidence under the CJA 2003.
  3. When can a statement made by a deceased witness be admitted as evidence?
  4. What is the res gestae exception and when does it apply?

Introduction

Hearsay evidence is a frequent issue in criminal trials. The general rule is that hearsay is inadmissible, but the law provides several exceptions. The CJA 2003 sets out a detailed framework for when hearsay may be admitted, including specific statutory gateways, preserved common law rules, and a discretionary “interests of justice” gateway. Understanding these rules is essential for SQE1.

Definition of Hearsay Evidence

Hearsay is defined by statute. The key question is whether a statement made outside the current proceedings is being used to prove the truth of what it asserts.

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

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

A statement is hearsay only if it is adduced to prove the truth of the matter stated.

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

The General Rule Against Hearsay

Hearsay is generally inadmissible in criminal trials. This rule exists because the original maker of the statement cannot be cross-examined, the statement was not made under oath, and the court cannot assess the maker’s credibility. There is also a risk of error or distortion.

Gateways for Admitting Hearsay Evidence

Section 114(1) CJA 2003 provides four main gateways for admitting hearsay:

  1. A statutory provision makes it admissible (e.g., s.116, s.117 CJA 2003)
  2. A preserved common law rule applies (s.118 CJA 2003)
  3. All parties agree to its admission
  4. The court admits it in the interests of justice

Statutory Gateways

Unavailable Witnesses (s.116 CJA 2003)

Section 116 allows a statement to be admitted if the witness is unavailable for one of five reasons:

  • death
  • unfit due to bodily or mental condition
  • outside the UK and not reasonably practicable to secure attendance
  • cannot be found despite reasonable steps
  • absent through fear (with court’s leave)

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

The statement must be first-hand hearsay, the maker must be identified, and the court must be satisfied as to the reason for unavailability.

Worked Example 1.1

A witness to a burglary gives a signed statement to police but dies before trial. Can the statement be admitted?

Answer: Yes, if the statement would have been admissible as oral evidence, the witness is identified, and the court is satisfied the witness is dead, the statement may be admitted under s.116.

Business Documents (s.117 CJA 2003)

Section 117 allows admission of statements in documents created or received in the course of business, trade, profession, or office, provided the information was supplied by someone with personal knowledge.

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

If the document was prepared for criminal proceedings, the maker must be unavailable under s.116 or unable to recollect the matters stated.

Exam Warning

If a business document was prepared for criminal proceedings, the maker must be unavailable under s.116 or unable to recollect the matters stated (s.117(4)-(5)).

Preserved Common Law Exceptions (s.118 CJA 2003)

Section 118 preserves certain common law exceptions, including:

  • public documents
  • res gestae
  • confessions
  • admissions by agents
  • statements in furtherance of a common enterprise
  • expert evidence

The res gestae exception is especially important.

Key Term: Res Gestae A statement made spontaneously during or immediately after an event, when the maker was so emotionally overpowered by the event that the possibility of fabrication can be disregarded.

Key Term: Confession A statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise.

Worked Example 1.2

During a robbery, the victim shouts “He’s got a gun!” as the robber flees. The victim later dies. Can a bystander testify to the shout?

Answer: Yes, the statement is hearsay if used to prove the robber had a gun, but it is likely admissible under the res gestae exception, as it was made contemporaneously and under stress.

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

Hearsay is admissible if all parties agree. This is common for uncontroversial evidence.

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

The court may admit hearsay if satisfied that it is in the interests of justice. The court must consider factors in s.114(2), including:

  • the statement’s probative value
  • other available evidence
  • the importance of the matter
  • the circumstances of the statement
  • reliability of the maker and the evidence of making the statement
  • whether oral evidence can be given and, if not, why
  • the difficulty of challenging the statement
  • the potential prejudice to the party facing it

This is a discretionary “safety valve” for exceptional cases.

Multiple Hearsay

Multiple hearsay (where information passes through more than one person) is generally inadmissible unless:

  • it is admissible under s.117 (business documents)
  • a preserved common law exception applies
  • all parties agree
  • the court admits it in the interests of justice (s.121 CJA 2003)

The requirements are stricter than for first-hand hearsay.

Excluding Hearsay Evidence

Even if hearsay is technically admissible, the court may exclude it.

Discretionary Exclusion under s.78 PACE 1984

The court may 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.

Key Term: Section 78 PACE 1984 A statutory power allowing a court to refuse to admit prosecution evidence if its admission would adversely affect the fairness of the proceedings.

Exclusion under CJA 2003 (s.125, s.126)

Section 126 CJA 2003 allows the court to exclude hearsay if the case for exclusion substantially outweighs the case for admission, considering the statement’s value and potential prejudice. Section 125 allows the court to stop a case if it relies wholly or partly on unconvincing hearsay.

Revision Tip

Always check if hearsay evidence can be challenged for unfairness under s.78 PACE 1984 or excluded under s.126 CJA 2003, even if it meets a gateway.

Summary

Hearsay evidence is generally inadmissible in criminal trials, but the CJA 2003 provides several gateways for its admission. The main statutory exceptions are for unavailable witnesses (s.116) and business documents (s.117). Preserved common law exceptions include res gestae and confessions. Hearsay may also be admitted by agreement or if the court considers it in the interests of justice. The court retains powers to exclude hearsay to ensure a fair trial.

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay is an out-of-court statement offered to prove the truth of its contents.
  • The general rule excludes hearsay unless a statutory or common law exception applies, all parties agree, or the court admits it in the interests of justice.
  • Key statutory exceptions are s.116 (unavailable witnesses) and s.117 (business documents).
  • The res gestae and confession exceptions are preserved at common law.
  • The court can exclude hearsay under s.78 PACE 1984 or s.126 CJA 2003 if its admission would be unfair.
  • Multiple hearsay is subject to stricter requirements for admissibility.

Key Terms and Concepts

  • Hearsay
  • Statement
  • Matter Stated
  • Unavailable Witness
  • Business Document
  • Res Gestae
  • Confession
  • Section 78 PACE 1984
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
Assessment Day
One-time Fee
$20-39
Barbri SQE
One-time Fee
$3,800-6,900
BPP SQE
One-time Fee
$5,400-8,200
College of Legal P...
One-time Fee
$2,300-9,100
Job Test Prep
One-time Fee
$90-350
Law Training Centr...
One-time Fee
$500-6,200
QLTS SQE
One-time Fee
$2,500-3,800
University of Law...
One-time Fee
$6,200-22,400

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal