Exceptions to the Hearsay Rule

June 10, 2022 10:23 am Published by Criminal Defence Solicitors

Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. There are a few parts to this, so let’s take it piece by piece.

The law on hearsay evidence is set out in the Criminal Justice Act 2003 (CJA 2003), sections 114-136. According to section 114(1) of the CJA 2003, hearsay means a “statement not made in oral evidence that is evidence of any matter stated”.

The Rule Against Hearsay Evidence

Prior to the Criminal Justice Act 2003 (CJA 2003) coming into effect, there was a general common law rule that hearsay evidence was inadmissible in criminal proceedings. Hearsay evidence was deemed to be ‘second-hand’ evidence because it was repeating something that had been said elsewhere, and the maker of the original statement could not therefore be directly cross-examined on its contents.

This general rule was subject to a number of exceptions, contained both in the common law and in a number of statutes. The CJA 2003 abolished the common law rule and put in place a statutory framework under which hearsay evidence may be admissible if it satisfies certain requirements.

Exceptions to the Rule Excluding Hearsay Evidence

The first category of hearsay evidence which is admissible by virtue of section114 is hearsay made admissible by virtue of any statutory provision. Hearsay evidence is made admissible as a result of a statutory provision in the following situations:

116. cases where a witness is unavailable – CJA 2003, section116.
117. business and other documents – CJA 2003, section117.
118. previous inconsistent statements of a witness – CJA 2003, section119.
119. previous consistent statements by a witness – CJA 2003, section120.
120. reports prepared by experts (if leave of the court is obtained) – CJA 1988, section30.
121. evidence of a confession made by the defendant – Police and Criminal Evidence Act 1984 codes of practice (PACE 1984), section76(1).
122. evidence raised by a defendant of a confession made by a co-accused – PACE 1984, section76A (1).
123. statements from a witness which are not in dispute – CJA 1967, section9; and
124. formal admissions – CJA 1967, section10.

Cases where a witness is unavailable – CJA 2003, s 116.

Section 116 of the CJA 2003 provides:

1. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
   1. oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter [i.e., the statement must be ‘first-hand hearsay’],
   2. the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
   3. any of the five conditions mentioned in subsection (2) is satisfied.

The conditions referred to in section116(2)(a)–(e) are that:

1. the relevant person has died.
2. the relevant person is unfit to be a witness because of their bodily or mental condition.
3. the relevant person is outside the United Kingdom, and it is not reasonably practicable to secure their attendance.
4. the relevant person cannot be found, although such steps as it is reasonably practicable have been taken to find them.
5. through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Section 116 applies only to ‘first-hand’ hearsay. In other words, a statement can be admissible under this section only if the person who made that statement would have been permitted to give oral evidence at trial of the matters contained in the statement. In the examples given above, the statement of each witness who was unable to come to court to give oral evidence would constitute ‘first-hand’ hearsay because their evidence had not passed through any other hands and was direct evidence of what they either saw or did.

So, what is ‘Second-Hand’ Hearsay?

Below is an example of ‘second-hand’ or multiple hearsay. Such evidence is not admissible under section116.

Camila witnesses an assault. She tells John what she saw when the assault occurred. John then gives a signed statement to the police repeating what Camila had told him. Before the case comes to trial, John is killed in a road traffic accident. John’s statement will not be admissible under section116. Although John satisfies the condition stated in section116(2)(a)) above, he would not have been permitted to give oral evidence at court as to the contents of his statement because his statement merely repeated what he had been told by Camila and was itself hearsay. Any evidence given by John would be multiple hearsay and therefore not admissible under section116.

John’s statement might have been admissible under section114 (1)(d) CJA, but this is a “catch-all” provision which allows the courts to admit hearsay which would not otherwise be admissible if it is in the interests of justice to do so.

How can we help?

If you have been found guilty of an offence and wish to know more about the different factors of hearsay evidence and how they can be used as evidence, here at Criminal Defence Solicitors we are here to help. We can provide our expert defence team to discuss your case and help you through the process of appearing at court. We will look at all the facts of the accusation and decide what is the best way forward to achieve the best for you and your case. This will include everything from the facts of the case all the way to what defence is best for your case.

Our team of litigators and advocates have many years of experience analysing complex factual scenarios and applying them to often novel areas of law, ensuring we get the best possible results for our clients. Do not hesitate to call us on 020 8158 9007or email us on info@criminaldefencesoliticors.co.uk to get expert legal advice for you and your case.