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Please ensure that you also read the further material in Blackstone's Criminal Practice and the
syllabus as outlined in paragraph 1 of this chapter.
1 Further required reading for this chapter
2 Introduction
3 History and rationale
4 The Criminal Justice Act (CJA) 2003
5 Exceptions to the exclusionary rule
6 Common law exceptions
7 Previous inconsistent statements
8 Previous consistent statements
9 Multiple hearsay
10 Evidence affecting the credibility of admissible hearsay
11 Unconvincing hearsay
12 Superfluous hearsay
13 Directing the jury
14 Procedure

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Further required reading for this chapter

1 In addition to this chapter, please ensure that you read part 14 (Hearsay
evidence) of the BSB syllabus (see appendix 1) and the chapters of Blackstone's
Criminal Practice identified within.

Introduction
2 The exclusionary rule as it relates to hearsay evidence is one that causes
problems for many practitioners of criminal law, even those who are very
experienced. It is important to address possible hearsay evidence in a structured
manner. There are two questions to be asked and they must be kept separate.
Any attempt to tackle both questions at once will lead to confusion. Firstly, does
the evidence fall within the definition of hearsay evidence? If the answer to this
question is 'yes', then it is prima facie inadmissible and one has to ask the
second question, namely, does it fall within one of the exceptions to the general
exclusionary rule?

History and rationale

3 The common law excluded statements other than statements made in oral
evidence given in court from being admitted as evidence of the truth of their
contents. The main reason for this was that the maker of the out of court
statement was not available to be cross-examined so the quality of the evidence
could not be tested. For example, in D's trial for the murder of V, A gives
evidence that B told him that D killed V. The problem is that only A is in court to
be cross-examined. There is no way of testing the credibility of B's statement. B
may have had a motive for wanting to get D into trouble. He may be passing on
what someone else told him. He may simply be mistaken. What he said may
have been misunderstood. In any event, it could not be safe for a conviction to
be founded on this evidence.
4 To avoid unfairness, the common law developed a number of exceptions to the
general rule where it appeared that hearsay evidence could properly be relied
on. There was, however, no general 'interests of justice' rule whereby hearsay
evidence could be admitted until the coming into force of s.114(1)(d) of the
Criminal Justice Act (CJA) 2003. As a result, some of the pre-2003 case law
involves appellate courts taking a broad view of the rules in order to avoid an
unfair outcome.
5 Because hearsay evidence cannot be tested by cross-examination in court, there
is an obvious risk of unfairness to the defendant where it is admitted. That risk
gets greater as the importance of the hearsay evidence to the prosecution case
increases. The ECHR Article 6 right to a fair trial may be engaged where
hearsay evidence is admitted. The UK Supreme Court and the European Court of

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Human Rights have considered the effect of hearsay evidence on the fairness of
trials. The principles that emerge from the decided cases are:
(a) The UK statutory framework for the admission of the evidence of absent
witnesses is sufficient, properly applied, to provide for a fair trial.
(b) The court must always be satisfied that there is a sufficient basis for the
absence of the witness and that a fair trial will be possible.
(c) It will be harder for the court to be satisfied that a fair trial will be possible
if the evidence of the absent witness is the sole or decisive evidence
against the accused.
(d) Where the hearsay evidence is critical to the case, the question of whether
there can be a fair trial depends on three principal factors:
(i) Whether there is a good reason to admit the evidence pursuant to
the CJA 2003;
(ii) Whether the evidence can be shown to be reliable; and
(iii) The extent to which counterbalancing measures have been properly
applied, eg exclusionary discretion, proper directions to the jury in
summing up.

The Criminal Justice Act (CJA) 2003

6 There is a general rule that hearsay evidence is inadmissible. Section 114 of the
CJA 2003 (see below) provides that it is admissible if, but only if, it falls within
one of the exceptions in s.114(1).
7 Section 114(1) of the Act reads:
'114 Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if, but only if--
(a) any provision of this Chapter or any other statutory provision makes
it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be
admissible.'

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8 Section 115 of the Act reads:

'115 Statements and matters stated
(1) In this Chapter references to a statement or to a matter stated are to be
read as follows.
(2) A statement is any representation of fact or opinion made by a person by
whatever means; and it includes a representation made in a sketch,
photofit or other pictorial form.
(3) A matter stated is one to which this Chapter applies if (and only if) the
purpose, or one of the purposes, of the person making the statement
appears to the court to have been--
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis
that the matter is as stated.'

R v Twist
9 The effect of the two sections above taken together was considered in R v Twist
[2011] EWCA Crim 1143. The Court of Appeal reformulated the sections as a
test that determines whether or not a communication is hearsay. It is in three
parts:
1. Identify what relevant fact (matter) it is sought to prove.
2. Ask whether there is a statement of that matter in the communication. If
no, then no question of hearsay arises (whatever other matters may be
contained in the communication).
3. If yes, 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.
10 Where there is no statement of a matter, eg where the communication consists
only of the asking of a question, the court in Twist thought that no issue of
hearsay could arise. In Twist the communications in question were text messages
received by the defendant asking for drugs. There was no statement that he was
a drug dealer (which was the matter that the prosecution sought to prove), so the
messages were not hearsay and were admissible. The court went on to say that
even if on these facts there was an implied statement that the recipient of the
messages was a drug dealer, it was certainly not the intention of the sender of
the message to make the recipient believe that fact. Applying s.115(3) means
that on that interpretation the messages are still not hearsay.

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11 It also follows from the definition of hearsay that anything written in a private
diary where the writer did not intend that anyone else should ever read it cannot
be hearsay. This is because there is no intention on the part of the maker of the
statement that any other person should believe anything.
12 Because s.115(2) contains the words '... made by a person ...', no issue of
hearsay arises where the piece of evidence in question was created entirely by a
device such as a CCTV system without any human input.

Hearsay and original evidence

13 Very often evidence of words spoken out of court will be admissible as original
evidence. In many cases the purpose of the party adducing the evidence will be
to show that the words were spoken, rather than that they were true. If that is the
case, the evidence is not hearsay because it is not being admitted as 'evidence
of any matter stated'.
14 Examples of original evidence include evidence of threats made to a person.
Where the threat is along the lines of, 'if you don't do what I say, I shall harm
you', the evidence is usually being adduced to show that the threat was made,
not that the maker of the threat would indeed cause harm to the person
addressed.
15 Original evidence can also be adduced to show the state of mind of the maker
of the statement. In Ratten v R [1972] AC 378 the defence to an allegation that
D murdered his wife was that the gun had gone off by accident. Evidence of a
999 call made by the deceased shortly before the killing was admitted to show
that she was in a distressed state at that time.
16 In general, if the purpose of adducing evidence of words spoken out of court is
to show the effect that the words had on the person to whom they were said,
rather than to show the truth of what was said, the evidence is not hearsay.
Therefore where a defendant wants to reveal the advice given to him by his
solicitor to show why he gave a "no comment" interview, that evidence is not
hearsay.
17 Where the words spoken have significance as a matter of law, they are not
hearsay. Therefore an offer of sexual services in exchange for money is
admissible to show that the premises on which the words were spoken is a
brothel. In this example the making of the offer is itself part of the definition of
"brothel".
18 It follows from the definition of hearsay in s.114 that there can be no hearsay
where a party adduces evidence of what was said out of court while asserting
that it is not true. Therefore the prosecution can give evidence of the giving of a
false alibi by the defendant to show that he was trying to avoid being convicted
of the offence.

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Exceptions to the exclusionary rule

19 The 2003 Act preserves some of the common law exceptions to the rule that
hearsay is inadmissible (see s.118), as well as creating some statutory
exceptions. S.114(1) provides that hearsay is not admissible unless it falls into
one of the four exceptions to the general exclusionary rule (see paragraph 7
above).

Unavailable witnesses
20 Section 116 reads:
'116 Cases where a witness is unavailable
(1) In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if--
(a) oral evidence given in the proceedings by the person who made
the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is
identified to the court's satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his
bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not
reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is
reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not
continue to 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.'
21 Section 116 requires that the maker of the statement is identified, so it cannot be
used to introduce anonymous hearsay. It does not allow in evidence that would
have been inadmissible in live evidence, such as evidence of bad character that
is not admissible through one of the gateways in ss.100 or 101.

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Unfitness to be a witness (s.116(2)(b))

22 Unfitness of a person to be a witness because of his bodily or mental condition
refers not to their fitness to physically attend court, but to their ability to give
evidence once there. There is no requirement that the condition that makes a
person unfit should be a medical condition. The trauma of having been the victim
of a sexual assault can qualify.

Witness outside the UK and it is not reasonably

practicable to secure his attendance/witness cannot
be found (s.116(2)(c) and (2)(d))
23 In deciding whether it is reasonably practicable for the witness to attend or
whether steps taken to find the witness were reasonably practicable, the court
has to consider the normal steps taken to secure the attendance of a witness.
Cost is a relevant factor and it has to be balanced against the importance of the
evidence that the witness would give. Subsection (2)(c) should be read as
referring to the impracticability of securing the attendance of the witness either in
person or by videolink.

Fear
24 Subsections 116(3) and (4) apply where a witness is said to fail to attend due to
fear:
'Section 116
(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and
(for example) includes fear of the death or injury of another person or of
financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that
the statement ought to be admitted in the interests of justice, having
regard:
(a) to the statement's contents,
(b) to any risk that its admission or exclusion will result in unfairness to
any party to the proceedings (and in particular to how difficult it
will be to challenge the statement if the relevant person does not
give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19 of
the Youth Justice and Criminal Evidence Act 1999 (c 23) (special
measures for the giving of evidence by fearful witnesses etc.) could
be made in relation to the relevant person, and
(d) to any other relevant circumstances.'

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25 There is no requirement that the fear that is felt by the witness should have been
caused by the defendant.
26 Authorities differ as to how the court should approach an enquiry as to whether
1
the reason for the absence of a witness is fear. In Davies it was said that courts
are ill-advised to seek to test the basis of fear by calling witnesses before them.
2
In later cases, especially Shabir the Court of Appeal took the view that every
effort should be made to get the witness to court to test the issue of his 'fear'.
27 It is very important that when police officers seek to persuade a witness to attend
court to give evidence, they do not give the witness any assurance that their
witness statement can be read to the court if they are afraid to attend. This would
provide the witness with an obvious incentive to say that he is in fear.
28 The court has to be satisfied to the criminal standard that the witness does not
give evidence through fear. A causative link between the fear and the failure to
give evidence must be established.

Intimidation
29 In Sellick [2005] EWCA Crim 651 the Court of Appeal made clear that where
intimidation of a witness by a defendant is either clearly proved or the court
believes to a high degree of probability that that is the case, the defendant
cannot complain that his right to a fair trial has been infringed on the basis that
he was not able to cross-examine the witness.

Business documents, etc

30 The CJA 2003, s.117 reads (in part):
'(1) In criminal proceedings a statement contained in a document is admissible
as evidence of any matter stated if:
(a) oral evidence given in the proceedings would be admissible as
evidence of that matter,
(b) the requirements of subsection (2) are satisfied…
(2) The requirements of this subsection are satisfied if:
(a) the document or the part containing the statement 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,
(b) 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, and

1
[2007] 2 All ER 1070
2
[2012] EWCA Crim 2564

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(c) each person (if any) through whom the information was supplied
from the relevant person to the person mentioned in paragraph (a)
received the information in the course of a trade, business,
profession or other occupation, or as the holder of a paid or
unpaid office.
(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be
the same person.'
31 The wording of s.117(2)(a) is wide enough to ensure that the section covers a lot
of documents that are not in any sense business documents. It covers, for
example, medical records as well as any statement written down by a police
officer in the course of his work.
32 There are extra rules that apply to documents prepared for the purposes of
pending or contemplated criminal proceedings. Subsections (4) and (5) of s.117
require that for those documents to be admissible, either one of the five
conditions mentioned in s.116 (see above) is satisfied, or the person who
supplied the information contained in the statement cannot reasonably be
expected to have any recollection of the matters dealt with in the statement
(having regard to the length of time since he supplied the information and all
other circumstances).
33 The question of whether or not a document was prepared for the purposes of
pending or contemplated criminal proceedings will usually be easy to answer
once the circumstances in which the document was made are known. Generally
all witness statements and all entries in police notebooks made in the course of
an investigation into an alleged offence will fall within the definition.

Exclusion
34 Sections 117(6) and (7) add to the general exclusionary discretion in s.78 of the
PACE 1984 in that they allow the court to exclude evidence that would
otherwise be admissible under s.117 if it is satisfied that the statement's
reliability is doubtful in view of:
(a) Its contents;
(b) The source of the information contained in it;
(c) The way in which or the circumstances in which the information was
supplied or received; or
(d) The way in which or the circumstances in which the document concerned
was created or received.
35 When considering whether to admit or exclude evidence through the gateways
created by ss.116 and 117, the court should take into account the factors listed
in s.114(2) that are relevant to decisions on admission of evidence in the
interests of justice (see below).

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Interests of justice
36 CJA 2003, s.114(1)(d) allows the admission of hearsay evidence where the
court is satisfied that it is in the interests of justice to admit it.
37 Section 114(2) requires the court when deciding whether it is in the interests of
justice to admit evidence of the following (and anything else it considers
relevant):
(a) How much probative value the statement has (assuming it to be true) in
relation to a matter in issue in the proceedings, or how valuable it is for
the understanding of other evidence in the case
(b) What other evidence has been, or can be, given on the matter or
evidence mentioned in paragraph (a)
(c) How important the matter or evidence mentioned in paragraph (a) is in
the context of the case as a whole
(d) The circumstances in which the statement was made
(e) How reliable the maker of the statement appears to be
(f) How reliable the evidence of the making of the statement appears to be
(g) Whether oral evidence of the matter stated can be given and, if not, why
it cannot
(h) The amount of difficulty involved in challenging the statement
(i) The extent to which that difficulty would be likely to prejudice the party
facing it
38 The application of s.114(1)(d) should be approached with caution. It is not
intended to be a way of getting round the failure of a particular piece of
evidence to fit into any of the other exceptions to the exclusionary rule. For
example, an attempt to use s.114(1)(d) failed in a case where a witness was
reluctant to come to court to give evidence because she did not want to relive the
trauma of the sexual assaults that would have been the subject of her evidence.
The Court of Appeal held that the prosecution was trying to circumvent s.116,
which does not recognise that reason for admitting hearsay evidence.
39 Section 114(1)(d) certainly cannot be used to repair failings on the part of the
party seeking to adduce the evidence. Where the Crown has failed to take
reasonable steps to find a witness or to secure his attendance, so that
s.116(2)(c) or (d) cannot be used, they cannot fall back on s.114(1)(d) and say
that the evidence should be admitted in the interests of justice.

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Common law exceptions

40 Section 118 of the CJA 2003 preserves some common law exceptions to the rule
against hearsay.

Public information
41 Published works dealing with matters of a public nature such as dictionaries and
maps continue to be admissible, as do public documents such as public registers
and records such as court records and public treaties. Also, a person may give
evidence of their age and the place of their birth despite the fact that they will
have been told these things by someone else.

Evidence of reputation
42 The common law rule allowing the admission of evidence of reputation as to
character to prove character is preserved.

Res gestae
43 Section 118 also preserves the common law rule that a statement is admissible
as evidence of any matter stated if:
(a) The statement was made by a person so emotionally overpowered by an
event that the possibility of concoction or distortion can be disregarded;
(b) The statement accompanied an act which can be properly evaluated as
evidence only if considered in conjunction with the statement; or
(c) The statement relates to a physical sensation or a mental state (such as
intention or emotion).
44 The leading case is R v Andrews [1978] AC 281. The res gestae rule does not
require that the statement is made as part of the action of the offence. What is
required is that the possibility of concoction can be excluded. The court must be
satisfied that the event to which the statement relates was so unusual or startling
or dramatic as to dominate the thoughts of the victim so that his utterance was an
instinctive reaction to that event. The statement must be made at a time when the
mind of the person making the statement was still dominated by the event.
45 Where res gestae evidence is admitted, it must be made clear to the jury that
they must be satisfied that there was no mistake on the part of the witnesses as to
what had been said to them. They must be satisfied that there was no concoction
on the part of the maker of the statement. Where there are special features that
bear on the possibility of mistake, the attention of the jury must be drawn to
them.

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46 In domestic violence cases the res gestae exception provides the prosecution
with an alternative to s.116(2)(e) as a way of admitting the evidence of a
complainant who does not give evidence at trial. What is said by the
complainant in a 999 call or to officers immediately after the alleged incident
will usually be admissible as res gestae evidence. The latter is becoming much
more important and reliable as a source of evidence now that most officers have
body-worn cameras that record both audio and video. The prosecutor can play
the footage from the body-worn device as evidence both of the demeanour of the
complainant straight after the incident as of the truth of what she says.

Confessions
47 The common law rule to the effect that evidence of confessions is admissible is
preserved. See elsewhere in this manual for detailed rules on the admissibility of
confessions.

Statements in furtherance of common enterprise

48 There is a broad common law rule that the statements of one party to a common
criminal enterprise in furtherance of that enterprise are admissible against all the
parties to the joint enterprise. This is of particular significance in conspiracy
cases.

Body of expertise
49 The common law rule that an expert witness may draw on a body of expertise is
preserved. Without this rule, it would be impossible for experts to give evidence
of any of the learning within their field, except that which they themselves had
contributed to the field.

Previous inconsistent statements

50 Section 119 of the CJA 2003 provides that a previous inconsistent statement that
a witness admits to having made or a previous inconsistent statement that the
witness is proved to have made is admissible as evidence of the matter stated.
This is an exception to the rule against hearsay. It was introduced by the 2003
Act. Prior to the Act, previous inconsistent statements were evidence only of
inconsistency.

Previous consistent statements

51 Sections 120(2) and 120(4) make admissible as evidence of any matter stated,
previous consistent statements admitted to rebut a suggestion of recent
fabrication or as recent complaint evidence. Again, this is an exception to the
rule against hearsay and is a novelty in the 2003 Act, before which such
evidence was only evidence that the statements had been made.

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Multiple hearsay
52 CJA 2003, s.121 provides that a hearsay statement is not admissible to prove
the fact that an earlier hearsay statement was made unless:
(a) Either of the statements is admissible under ss.117, 119 or 120;
(b) All parties to the proceedings so agree; or
(c) The court is satisfied that the value of the evidence in question, taking into
account how reliable the statements appear to be, is so high that the
interests of justice require the later statement to be admissible for that
purpose.
53 The effect of the rule is that multiple hearsay is never allowed through any of the
exceptions in s.116 or through any of the preserved common law exceptions in
s.118.

Evidence affecting the credibility of

admissible hearsay
54 Because the maker of a hearsay statement is not present in court to be cross-
examined, it is necessary to allow his credibility to be challenged in other ways.
CJA 2003, s.124 allows an opposing party to put into evidence anything that
could have been put to the witness to challenge credibility in cross-examination.
It goes further than that in allowing the admission of evidence as to matters on
which the witness's answers in cross-examination would have been final.

Unconvincing hearsay
55 CJA 2003, s.125 allows the judge to stop a case where the case depends
wholly or partly on hearsay evidence and that evidence is so unconvincing that,
considering its importance to the case against the defendant, his conviction of
the offence would be unsafe. Under those circumstances, the judge must either
discharge the jury and order a retrial, or direct the jury to acquit the defendant.

Superfluous hearsay
56 CJA 2003, s.126 allows the court to exclude hearsay evidence that would
otherwise be admissible where the admission of the evidence would result in
undue waste of time. This is a provision that can be used to exclude hearsay
evidence proffered by either the prosecution or the defence. It is intended to
avoid time being wasted on peripheral issues.

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Directing the jury

57 The jury must be reminded that a hearsay statement that has been admitted at
the trial was not given on oath and that it was not tested in cross-examination.
The risks of relying on hearsay evidence should be pointed out and the jury
should be warned to scrutinise it with particular care. Where the court has
concerns about the quality of a particular piece of hearsay evidence, the
attention of the jury should be drawn to the limitations on the usefulness of that
piece of evidence.

Procedure
58 Part 20 of the Criminal Procedure Rules applies to the admission of hearsay
evidence.

Notice
59 Notice is required where a party intends to introduce hearsay evidence under
s.144(1)(d) (interests of justice); s.116 (witness unavailable); s.117(1)(c)
(document prepared in contemplation of criminal proceedings; or s.121 (multiple
hearsay).
60 The notice must be served on the court and on every other party. It must:
(a) Identify the hearsay evidence
(b) Set out the facts relied on that make the evidence admissible
(c) Explain how those facts will be proved if they are disputed
(d) Explain why the evidence is admissible
The evidence must be attached to the notice if it has not already been served.
61 The prosecution must serve notice not more than:
(a) 28 days after a not guilty plea in the magistrates' court; or
(b) 14 days after a not guilty plea in the Crown Court.
62 A defendant must serve notice as soon as reasonably practicable.

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Opposing the introduction of hearsay evidence

63 A party objecting to the introduction of hearsay evidence must serve an
application on the court and every other party as soon as reasonably practicable
and in any event not more than 14 days after either of the following, whichever
of those happens last:
(a) Service of the notice to introduce the evidence;
(b) Service of the evidence objected to, if that is evidence for which no notice
is required; or
(c) The defendant pleads not guilty.
64 The application must explain:
(a) Which, if any, facts set out in the notice to introduce the evidence the
party disputes;
(b) Why the evidence is not admissible; and
(c) Any other objection to the evidence.

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