CJA vs.

Common Law- Hearsay

Introduction

Body

1. Definition
Rupert Cross, subsequently endorsed by House of Lords in R v Sharp: An
assertion other than one made by a person while giving oral evidence in proceedings is
inadmissible as evidence of any fact asserted.

S.114(1) CJA that in criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter provided conditions are satisfied

Distinguished from common law, in deciding if out of court statement is hearsay, focus is
on purpose of the maker making statement rather than that of party seeking acceptance of truth of
evidence. Previously, if is to prove the truth of fact asserted, then it categorised as hearsay and thus
inadmissible and vice versa. Such blurry distinction contributed to uncertainty.

Subramanaiam v PP
Woodhouse v Hall
Sparks v R

R v Leonard
R v KN

2. Implied Assertions

R v Kearley- common law- implied assertions were caught by the Hearsay rule

Today, if as per S.115(3), implied assertions are no longer H and governed by common law.

3. Another welcomed improvement is brought by S.117(2) for promoting admissibility of

documentary H. Maher v DPP. Vs. Myers v DPP.

4. S.114(1)(d) interest of justice

Sparks, there is no judicial discretion to admit even good quality evidence. Contradicting case
is R v J(S)(2009)

5. Too much discretion?

S114(1)d
S117(7)
S125
S126
S116(4)

6. Unnecessary preservation of the Res Gestae provision

7. Compatibility of H and ECHR {A6(3)}

In Horncastle (2009) and Grand Chamber in Al-Khawaja and Tahery v UK (2011)

8. Conclusion