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

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Overview

Hearsay evidence presents a significant challenge in legal proceedings, requiring careful comprehension for SQE1 FLK2 exam success. This article examines the definition of hearsay under the Criminal Justice Act (CJA) 2003, its criteria for admissibility, key exceptions, and the procedures for its use in court. Understanding these concepts is essential for aspiring solicitors as they play a vital role in evidentiary law and can greatly affect trial outcomes.

Definition of Hearsay

Hearsay, as defined in the CJA 2003, refers to "a statement not made in oral evidence in the proceedings but is relied on to prove the truth of its contents." It includes any out-of-court statement, written or oral, used to substantiate a fact in the proceedings.

Historically, common law regarded hearsay skeptically due to several concerns:

  1. Lack of cross-examination
  2. Absence of oath
  3. Inability to observe the person making the statement
  4. Potential for fabrication or distortion

Admissibility Under the CJA 2003

The CJA 2003 transformed the handling of hearsay, establishing a more adaptable approach while preserving safeguards. Section 114 lists four main gateways for admitting hearsay evidence:

  1. Statutory Provisions: Specific allowances within the CJA 2003 or other legislative acts.

  2. Preserved Common Law Exceptions: Certain historical exceptions, such as res gestae statements.

  3. Agreement Among Parties: Hearsay may be introduced if all parties consent.

  4. Interests of Justice: Courts may admit hearsay if it serves justice, considering factors outlined in Section 114(2).

Interests of Justice Provision

When considering admission under the "interests of justice" (Section 114(1)(d)), courts evaluate several factors:

  • Probative value of the evidence
  • Difficulty in obtaining alternative evidence
  • Reliability of the evidence
  • Possibility of evaluating the credibility of the source
  • Admissibility of oral evidence on the same matter
  • Overall relevance of the evidence in the case

Key Exceptions and Comparisons

Statutory Exceptions

  1. Business Documents (Section 117): Records created or received in the course of trade or profession.

  2. Unavailable Witnesses (Section 116): Statements from witnesses who are dead, unfit, outside the UK, cannot be found, or are in fear.

  3. Multiple Hearsay (Section 121): Hearsay within hearsay, admissible if each level meets an exception.

Common Law Exceptions

  1. Res Gestae: Spontaneous statements made as part of the event in question.

  2. Admissions and Confessions: Statements made against one's own interest.

  3. Public Documents: Official records maintained for public reference.

Civil vs. Criminal Contexts

  • Civil cases: The Civil Evidence Act 1995 allows hearsay, with courts determining its weight.
  • Criminal cases: CJA 2003 provisions apply, generally requiring a more stringent approach.

Procedural Requirements

Criminal Procedure Rules (CrimPR) Part 20

  1. Notice requirement: Parties must notify others of intent to introduce hearsay.

  2. Content of notice: Specify the evidence, identify the applicable exception, and justify admission.

  3. Timing: Notice given as soon as reasonably practicable.

  4. Objections: Other parties may object within a specified timeframe.

  5. Court's power: Discretion to waive notice requirements or admit evidence despite non-compliance.

Judicial Discretion and Challenges

Judges retain discretion to exclude admissible hearsay under:

  • Section 78 of PACE in criminal proceedings
  • The overriding objective in civil proceedings

Practical Examples and Applications

Example 1: Business Records in Fraud Cases

In a fraud trial, prosecutors seek to introduce financial records from a defunct company containing statements about suspicious transactions.

Analysis: Potentially admissible under Section 117 (business documents). Courts consider:

  • Creation or receipt in the course of business
  • Reliability of record-keeping system
  • Proximity in time to events

Example 2: Unavailable Witness in Assault Case

Prosecution wants to introduce a written statement from a deceased key witness in an assault case.

Analysis: Involves Section 116 (unavailable witnesses). Considerations include:

  • Circumstances of statement creation
  • Potential motives for fabrication
  • Importance to the case
  • Availability of corroborating evidence

Example 3: Multiple Hearsay in a Murder Investigation

Detectives receive an anonymous tip with secondhand information about a defendant's involvement in a murder.

Analysis: Subject to Section 121 (multiple hearsay). For admission:

  • Each level of hearsay must satisfy an exception
  • Court assesses reliability and necessity
  • May invoke the interests of justice test (Section 114(1)(d))

Conclusion

Understanding hearsay evidence is essential for SQE1 FLK2 exam success and future legal practice. Key points to remember:

  1. Hearsay is an out-of-court statement offered to prove its truth.
  2. The CJA 2003 provides a framework for admissibility, balancing fairness and evidential value.
  3. Statutory and common law exceptions exist, each with specific criteria.
  4. Procedural requirements, especially under CrimPR Part 20, are essential for proper introduction of hearsay.
  5. Courts retain discretion to exclude hearsay, even when it meets admissibility criteria.
  6. Different approaches apply in civil and criminal contexts.
  7. Practical application requires analysis of the specific circumstances, reliability, and necessity of the evidence.

Understanding these principles enables future solicitors to handle the complex realm of hearsay evidence, ensuring fair and just legal proceedings.