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”.
When is Hearsay evidence admissible in Court?
Hearsay evidence is inadmissible in criminal proceedings except where there is some statutory provision which renders it admissible, or where a common law rule making the evidence admissible is preserved by section 118 of the CJA 2003. It is also admissible if all the parties of the proceedings agree on it being admissible, or where the court is satisfied that it is in the interests of justice for the evidence to be admissible (section 114(1) of the CJA 2003).
It is worth noting that the admissibility of hearsay evidence in criminal proceedings are set out in sections 114 and 136 of Chapter 2 CJA 2003 and applies to all criminal proceedings begun on or after 4th April 2005 (section 141 Criminal Justice Act 2003). The Courts also have an express power to exclude hearsay evidence according to section 126 of the Act and to stop a case where hearsay evidence is unconvincing according to section 125 of the CJA 2003.
There is also no absolute principle that a conviction based entirely on hearsay evidence is unfair as there are counter valancing measures in the hearsay framework of the Act to make the trial fair according to the case R v Horncastle  2 AC 373.
What is a “Matter Stated”?
A ‘matter stated’ is one where the purpose or one of the purposes of the person making the statement appears to have been to cause another person to believe the matter or to act upon the matter (section 115(3) of the CJA 2003). This definition enables evidence to be admitted of ‘implied assertions’.
The enabling of a “matter stated” statements was to reverse the decision in R v Kearley (1992) 2 AC 228. In this case, the police answered telephone calls and personal calls to the defendant’s home from people asking about drugs that the defendant had for sale. The Prosecution wished to present the evidence to prove that the intended recipient of the calls was a dealer in drugs, without evidence from the callers themselves. The House of Lords decided that, as evidence of the fact that the defendant dealt in drugs, the caller’s words were hearsay and thus inadmissible.
The case would be decided differently now as the purpose of the calls was to simply to request drugs, not to cause another person to believe that the recipient of the call was a drug dealer. Therefore, they would fall outside the provisions of s.115(3) of the Act and would no longer be considered to be hearsay. In the case of R v Singh  EWCA Crim 660, the Court of Appeal stated that the effect of the CJA 2003 was to revoke the decision in the Kearley case, and that ‘implied assertions’ were not hearsay.
In R v Twist and Others  EWCA Crim 1143, the Court of Appeal strongly recommended avoidance of the difficult concept of the “implied assertion” because the Criminal Justice Act 2003 focuses on the ‘matter stated’, which it is sought to prove. The Court of Appeal then suggested the following approach when considering whether the hearsay rules applied:
- identify what relevant fact (matter) the statement is intended to prove.
- ask whether there is a statement of that matter in the communication. If not, then no question of hearsay arises (whatever other matters may be contained in the communication).
- If there was such a statement, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true. If yes, it is hearsay. If no, it is not.
Of course, it is worth noting that the answers to these questions will depend on the facts of each individual case. The same communication will sometimes be hearsay and sometimes not, depending on the fact which it is intended to prove.
Exceptions to the rule against Hearsay
Section 114(1) of the CJA 2003 provides four circumstances in which hearsay evidence is admissible in criminal proceedings:
- The CJA or any other statutory provision makes it admissible.
- It is one of the common law exceptions preserved by section 118 (see below)
- All parties to the proceedings agree to it being admissible; or.
- The court is satisfied that it is in the interests of justice for it to be admissible.
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 email@example.com to get expert legal advice for you and your case.