Principles and procedures to admit and exclude evidence - Grounds for admitting hearsay

Learning Outcomes

This article outlines the general rule against the admissibility of hearsay evidence in criminal proceedings and explores the main exceptions under which such evidence can be admitted. After reading this article, you should be able to define hearsay, identify the rationale for its exclusion, and recognise the key statutory and common law gateways for admissibility as required for the SQE1 assessment. This includes understanding the conditions for admitting statements from unavailable witnesses and business documents, as well as the court's discretion to admit hearsay in the interests of justice.

SQE1 Syllabus

For SQE1, you must understand the principles governing the admissibility of hearsay evidence in criminal trials. This includes knowing the general rule of exclusion and the specific exceptions provided by statute and common law. You will need to apply these rules to determine whether hearsay statements presented in factual scenarios are likely to be admissible.

As you work through this article, focus your revision on:

  • The definition of hearsay evidence and the reasons for its general inadmissibility.
  • The statutory exceptions under the Criminal Justice Act 2003 (CJA 2003), especially s 116 (unavailable witnesses) and s 117 (business documents).
  • The conditions under which a witness is deemed 'unavailable' according to s 116(2) CJA 2003.
  • The requirements for admitting business documents under s 117 CJA 2003.
  • The preserved common law exceptions listed in s 118 CJA 2003, particularly res gestae and confessions.
  • The court's discretionary power to admit hearsay in the interests of justice under s 114(1)(d) CJA 2003 and the relevant factors in s 114(2).
  • The rules surrounding multiple hearsay.

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. Which of the following best defines a hearsay statement in criminal proceedings?
    1. Any statement made outside of court.
    2. A statement made in court that repeats what someone else said.
    3. An out-of-court statement tendered as evidence of the truth of the matters stated within it.
    4. A written statement submitted as evidence instead of oral testimony.
  2. A witness gave a statement to the police but has since moved abroad permanently and refuses to return for the trial due to the cost and inconvenience. Under which specific ground in s 116(2) CJA 2003 might the prosecution seek to admit their statement?
    1. The witness is dead.
    2. The witness is unfit to attend.
    3. The witness is outside the UK and it is not reasonably practicable to secure their attendance.
    4. The witness cannot be found.
  3. A hospital's patient record, created by a nurse detailing treatment given, is sought to be admitted as evidence. Which statutory provision is most likely relevant to its admissibility?
    1. s 114(1)(d) CJA 2003 (Interests of Justice)
    2. s 116 CJA 2003 (Unavailable Witnesses)
    3. s 117 CJA 2003 (Business Documents)
    4. s 118 CJA 2003 (Common Law Exceptions)

Introduction

In criminal trials, evidence is usually presented through the live testimony of witnesses who can be questioned and cross-examined. This process allows the court to assess the reliability and credibility of the evidence. However, sometimes a party may seek to rely on a statement made outside the courtroom as proof of the facts contained within that statement. This is known as hearsay evidence.

Due to concerns about reliability – the inability to test the statement through cross-examination, the risk of misreporting, and the absence of an oath – hearsay evidence is generally inadmissible. However, the law recognises that sometimes hearsay evidence is necessary or inherently reliable. The Criminal Justice Act 2003 (CJA 2003) codified the rules, confirming the general ban but providing specific statutory exceptions, preserving certain common law exceptions, allowing admissibility by agreement, and granting the court a discretion to admit hearsay where it is in the interests of justice.

Key Term: Statement Any representation of fact or opinion made by a person by whatever means; it includes a representation made in a sketch, photofit or other pictorial form (CJA 2003, s 115(2)).

Key Term: Hearsay A statement not made in oral evidence in the proceedings that is relied on as evidence of any matter stated within it (CJA 2003, s 114(1)). The essential aspect is the purpose for which the statement is being tendered: if it is to prove the truth of the matter stated, it is hearsay.

THE RULE AGAINST HEARSAY

The fundamental rule is that hearsay evidence is inadmissible in criminal proceedings unless it falls within one of the recognised exceptions. This rule aims to ensure fairness by requiring evidence to be given first-hand where possible, allowing for cross-examination.

STATUTORY EXCEPTIONS UNDER CJA 2003

The CJA 2003 is the primary source for exceptions to the hearsay rule. Section 114(1) permits hearsay admissibility if authorised by:

(a) A statutory provision (including ss 116, 117 CJA 2003).
(b) A preserved common law rule (s 118 CJA 2003).
(c) Agreement of all parties.
(d) The court, in the interests of justice.

Unavailable Witnesses (s 116 CJA 2003)

A statement made out of court by an identified person is admissible as evidence of the matters stated if oral evidence would have been admissible, and the person is unavailable to testify for one of the five reasons listed in s 116(2):

  1. Dead: The person is deceased.
  2. Unfit: The person is unfit to be a witness due to their bodily or mental condition. Medical evidence is usually required.
  3. Outside the UK: The person is outside the UK and it is not reasonably practicable to secure their attendance (considering cost, time, importance of evidence etc.).
  4. Cannot be found: Despite such steps as it is reasonably practicable to take to find them, the person cannot be found.
  5. Fear: The person does not give oral evidence through fear, and the court gives leave for the statement to be admitted. 'Fear' is broadly construed. Leave requires the court to consider the interests of justice, including the statement's importance, potential unfairness, and the possibility of using special measures (s 116(4)).

Key Term: Unavailable Witness A witness who cannot give oral evidence in court due to one of the specific reasons outlined in s 116(2) CJA 2003 (dead, unfit, outside UK, cannot be found, fear).

Worked Example 1.1

Anna witnessed a robbery and provided a detailed statement to the police. A week before the trial, Anna suffered a severe stroke and her doctor certifies she is medically unfit to attend court or give evidence for the foreseeable future. The prosecution wishes to read her statement.

Is Anna's statement likely admissible?

Answer: Anna's statement is hearsay. It may be admissible under s 116 CJA 2003. Anna is identified, and her oral evidence would have been admissible. She is unavailable because she is unfit due to her bodily/mental condition (s 116(2)(b)). Medical evidence supports this. Therefore, the statement is likely admissible.

Business and Other Documents (s 117 CJA 2003)

This section provides for the admissibility of statements contained in documents created or received in the course of a business, profession, occupation, or public office.

The conditions for admissibility under s 117 are:

  1. Oral evidence of the matter stated would be admissible.
  2. The document was 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.
  3. The person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.
  4. If the information passed through intermediaries, each person received the information in the course of their occupation or office.

Key Term: Business Document A document 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 (CJA 2003, s 117(2)(a)).

This exception facilitates the use of routine records (e.g., invoices, logs, medical notes) without needing to call the original maker, provided the conditions are met. However, if the document was prepared specifically for criminal proceedings (e.g., a police officer's witness statement), it is only admissible under s 117 if the maker is unavailable (under s 116 conditions) or cannot reasonably be expected to recall the matters (s 117(5)).

Worked Example 1.2

A company's delivery records, maintained electronically by warehouse staff based on dispatch notes completed by drivers, show that a specific package was dispatched on Monday. In a trial for theft of the package, can the prosecution use the electronic record as evidence of dispatch?

Is the electronic record likely admissible?

Answer: The electronic record is hearsay. It is likely admissible under s 117 CJA 2003. It is a business document created in the course of the company's business. The warehouse staff entered the data in the course of their occupation. The drivers who completed the dispatch notes presumably had personal knowledge of the dispatch. Assuming the information transfer met the requirements, the record is admissible.

PRESERVED COMMON LAW EXCEPTIONS (s 118 CJA 2003)

Section 118 CJA 2003 preserved several common law exceptions to the hearsay rule. The most relevant for SQE1 purposes are:

Res Gestae

Statements made as part of the res gestae (Latin for 'things done') are admissible. This covers statements made spontaneously during an event where the circumstances suggest little opportunity for concoction or distortion. There are three main categories:

  1. Statements made by a person emotionally overpowered by an event (e.g., a victim's cry during an attack).
  2. Statements accompanying an act that can only be understood in conjunction with the statement.
  3. Statements relating to a physical sensation or mental state (e.g., expressing pain).

Key Term: Res Gestae Statements made spontaneously during or immediately after an event, considered part of the event itself and admitted due to their presumed reliability stemming from immediacy.

Confessions

Admissions or confessions made by a defendant are admissible against them as an exception to the hearsay rule (subject to rules on exclusion, e.g., under PACE 1984 ss 76 and 78).

Other preserved common law exceptions include public information (e.g., public documents, records), reputation as to character, family tradition, and expert evidence drawing on the work of others.

OTHER GROUNDS FOR ADMISSION (s 114 CJA 2003)

Agreement

Hearsay is admissible if all parties to the proceedings agree (s 114(1)(c)).

Interests of Justice

The court retains a residual discretion to admit hearsay evidence not covered by other exceptions if satisfied that it is in the interests of justice to do so (s 114(1)(d)). Section 114(2) lists non-exhaustive factors the court must consider:

  • The statement's probative value.
  • Other available evidence on the matter.
  • The importance of the matter.
  • The circumstances of the statement's making.
  • The reliability of the maker and the evidence of the statement being made.
  • Whether oral evidence can be given and, if not, why.
  • The difficulty of challenging the statement.
  • The prejudice to the opposing party.

This power provides a safety valve but is exercised cautiously, ensuring fairness remains of utmost importance.

Exam Warning

A common error is to overlook the specific requirements of each exception. For s 116, ensure the witness fits one of the five statutory categories of unavailability. For s 117, confirm the document meets the business record criteria. Simply arguing that hearsay is 'reliable' or 'necessary' is insufficient without grounding it in a specific legal gateway.

MULTIPLE HEARSAY

Multiple hearsay refers to situations where information is passed through more than one person (e.g., 'A told B what C said'). Section 121 CJA 2003 states that multiple hearsay is admissible only if:

  • It is admissible under s 117 (business documents), s 119 (inconsistent statements), or s 120 (consistent statements); or
  • All parties agree; or
  • The court uses its discretion under s 114(1)(d) and considers it in the interests of justice.

PROCEDURAL REQUIREMENTS

Adducing hearsay evidence often requires compliance with procedural rules, primarily found in Part 20 of the Criminal Procedure Rules (CrimPR). For certain exceptions (ss 114(1)(d), 116, 117(1)(c), 121), the party seeking to rely on the hearsay evidence must give notice to the court and the other party/parties. The notice must identify the evidence, state the grounds for admissibility, and explain how any disputed facts will be proved. The opposing party then has a period to object by serving a counter-notice. Failure to comply with notice requirements can lead to exclusion.

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay is an out-of-court statement tendered to prove the truth of its contents and is generally inadmissible.
  • The CJA 2003 provides the main framework for admissibility.
  • Key statutory exceptions include s 116 (unavailable witnesses - dead, unfit, abroad, lost, fear) and s 117 (business documents created in the course of occupation with personal knowledge).
  • Common law exceptions preserved under s 118 include res gestae and confessions.
  • Hearsay is admissible by agreement of all parties.
  • The court has a residual discretion to admit hearsay in the interests of justice (s 114(1)(d)), considering factors in s 114(2).
  • Multiple hearsay admissibility is restricted.
  • Procedural rules (CrimPR Part 20) often require notice to be given to adduce hearsay evidence.

Key Terms and Concepts

  • Statement
  • Hearsay
  • Unavailable Witness
  • Business Document
  • Res Gestae
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