Criminal Litigation and

Advocacy
Hearsay Evidence
Hearsay evidence – the general rule
 It is an important part of the role of the defence lawyer to
test the evidence against the client.
 The court is generally required to decide who is telling the
truth and, as we have noted, evidence on disputed facts is
usually given by a witness live in court who is examined and
then cross examined.
 If the disputed fact is included in a written statement, rather
than during live testimony, the defence cannot test that
evidence by cross examination.
 There may be a strong argument that this breaches the
defendant’s right to a fair trial under article 6.
 Thus the general rule is that hearsay evidence is
inadmissible. It is known as second hand evidence and is
inferior to live testimony.
Hearsay – the statutory definition
 The Criminal Justice Act (CJA) 2003 puts in place a statutory framework under
which hearsay maybe admissible so long as it satisfies certain requirements.
 Definition: S114 CJA 2003
 (1) In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated in it
 A ‘statement’ is defined in s 115(2) as ‘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’.
 The purpose, or one of the purposes, of the person making the statement
must appear to the court to have been to cause another person to believe
that the matter, or to cause another person to act (or a machine to operate)
on the basis that the matter, is as stated (CJA 2003, s 115(3)).
Hearsay
 There are two parts to the definition:
 1. A statement not made during live testimony,
 2.‘in order to prove the truth of the matter stated in it”

 EXAMPLE: A witness repeating at trial what he has been told by

another person
 PC Smith gives evidence for the CPS in a shoplifting case. He says to
the court: ‘When I arrived at the shop, I was told by the store detective
that the defendant had left the store without paying for the goods.’
 This will be hearsay evidence because the statement by the store
detective was not made by him in oral evidence and the statement
is being relied upon to show that the defendant left the shop
without paying for the goods.
Further examples
 EXAMPLE: A statement from a witness being read out at trial instead of the
witness attending court to give oral evidence
 Suzanne is charged with common assault. Marie witnesses the assault and gives a
statement to the police confirming what she saw. Marie is subsequently unavailable to
attend Suzanne’s trial to give oral evidence. If the CPS seeks to read out Marie’s written
statement at Suzanne’s trial, this will be hearsay evidence, because the statement by
Marie was not made by her in oral evidence and the statement is being relied upon
to show that Suzanne committed the assault.

 EXAMPLE: A police officer repeating at trial a confession made to him by the

defendant
 Sean is charged with assault occasioning actual bodily harm. At Sean’s trial, the arresting
officer tells the court: ‘When I arrested the defendant, he told me that he punched the
complainant because the complainant had been rude to his girlfriend.’
 This will be hearsay evidence because the statement by Sean was not made by
him in oral evidence and the statement is being relied upon to show that Sean
committed the assault
When can hearsay be admitted under s114 CJA
2003
 Hearsay evidence will be admissible if it falls within one of four
categories. Section 114 of the CJA 2003 states:
 (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.
Hearsay amissible due to a statutory provision
 S114(1)(a): Hearsay evidence is admissible under this section in the following
circumstances.
 (a) cases where a witness in unavailable – CJA 2003, s 116;
 (b) business and other documents – CJA 2003, s 117 ;
 (c) previous inconsistent statements of a witness – CJA 2003, s 119;
 (d) previous consistent statements by a witness – CJA 2003, s 120;
 (e) reports prepared by experts (if leave of the court is obtained) – CJA 1988, s 30;
 (f ) evidence of a confession made by the defendant – PACE 1984, s 76(1);
 (g) evidence raised by a defendant of a confession made by a co-accused – PACE 1984,
 s 76A(1);
 (h) statements from a witness which are not in dispute – CJA 1967, s 9; and
 (i) formal admissions – CJA 1967, s 10.
The unavailable witness under s116 CJA 2003
 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—
 (a) oral evidence given in the proceedings by the person who made the statement would be
 admissible as evidence of that matter (ie, the statement must be ‘first-hand hearsay’),
 (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.
 The conditions referred to in s 116(2)(a)–(e) are that:
 (a) the relevant person is dead;
 (b) the relevant person is unfit to be a witness because of his bodily or mental condition;
 (c) the relevant person is outside the United Kingdom and it is not reasonably practicable to
secure his attendance;
 (d) the relevant person cannot be found, although such steps as it is reasonably practicable to
take to find him have been taken;
 (e) 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.
The reason’s for a witness’s unavailability
 Reason 1 – the witness is dead or unfit
 R V Setz Dempsey [1993] confirms that an assessment of the witness’s unfitness
to attend can include both mental or physical capacity. A death certificate or a
medical report should discharge the burden of proving this ground.
 Reason 2 – the witness is (a) outside the UK and (b) it is not reasonably
practicable to secure his attendance
 Both conditions must be satisfied.
 The COA in the case of Castillo [1996] identified a number of factors that
should be considered:
 The importance of the evidence the witness could give;
 The expense and inconvenience of securing the attendance of the witness;
 The seriousness of the offence
 Whether the witness’s evidence could be given via television link; and
 The prejudice likely to be caused to the defendant given that the defendant
would have no opportunity to cross examine
The reason’s for a witness’s unavailability
 Reason 3 – all reasonable steps have been taken to find the witness, but they
cannot be found
 The party seeking to use the hearsay at trial must prove that all reasonable steps have
been taken to find the witness.
 Reason 4 – the witness does not give evidence through fear
 Fear is defined in s116(3) to include fear of death or injury of another person or
financial loss. The witness’s fear must be genuine and should be proved by way of
admissible evidence. In R V Rutherford [1998] fear was proved by a signed witness
statement from the witness. A witness may still be in fear notwithstanding that the fear
was not induced by or on behalf of the defendant.
 The court may grant leave under s116(4) where it would be in the interests of justice to
admit the statement having regard to:
 (a) the statement’s contents
 (b) any risk that its admission or exclusion will result in unfairness to any party
 (c) the fact that a special measures direction could be made in relation to the relevant
person
 (d) any other relevant circumstance.
Documentary Evidence S117
 Section 117 of the CJA 2003 provides:
 (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 evidence of that matter,
 (b) the requirements of subsection (2) are satisfied, and
 (c) the requirements of subsection (5) are satisfied, in a case where subsection (4)
requires
 them to be.
 The requirements of s 117(2) are that:
 (a) the document (or the part of it containing the statement) must have been 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
Documentary Evidence S117
 (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.
 The practical effect of s 117 is to make both ‘first-hand’ and ‘multiple’ hearsay in certain
documents admissible in evidence.
 Section 117 will commonly be used to ensure the admissibility in evidence of business records.
 EXAMPLE
 Anthony deposits £1,000 in a safe at the betting shop where he works. He tells Shona, one
 of his colleagues. Shona passes this information on to Gavin, the owner of the shop, who
 records the deposit in a ledger.
 AnthonyShonaGavinGavin’s entry in the ledger‘multiple hearsay’
 The entry in the ledger is multiple hearsay, but it will be admissible under s 117. The entry
 in the ledger is a statement in a document which was created by Gavin in the course of
 business. The person who supplied the information contained in the ledger (Anthony) had
 personal knowledge of the making of the deposit, and the person through whom the
 information was passed (Shona) received the information in the course of business.
 Documents created for the purposes of pending or contemplated
criminal proceedings/investigation
 If the statement was prepared for ‘the purposes of pending or contemplated criminal
proceedings, or for a criminal investigation’ (s 117(4)), the requirements of s 117(5) must
be satisfied. The requirements of s 117(5) will be satisfied if:
 (a) any of the five conditions mentioned in s 116(2) is satisfied (the unavailable witness);
or
 (b) the relevant person 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).
 Can the court refuse to admit a statement under s 117?
 The court retains a discretionary power to make a direction that a statement shall not be
admitted under s 117 (CJA 2003, s 117(6)). The court may make such a direction if it is
satisfied that the statement’s reliability as evidence for the purpose for which it is
tendered 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 (CJA 2003, s 117(7)).
Section 9 Criminal Justice Act 1967

 A written statement may be used in evidence where it is in

the correct form and there is no objection by the other party.
 It is used to admit uncontroversial evidence.
 To be admitted under S9 the statement must be signed by
the maker and contain a declaration that it is true to the
best of his knowledge and belief
 A copy must be served on the other party before the
hearing and the other party must not object to its use
 Generally used to admit evidence that is not disputed, but
might be used as hearsay evidence.
Example of S9 Statement
 STATEMENT OF WITNESS
(Criminal Procedure Rules 2016, R27.2, Criminal Justice Act 1967, S9)
(Magistrates Court Act 1980, S5B)
STATEMENT OF ......Paul Carter ................................................
Age of witness (if over 18 enter 'over 18') ..........Over 18.......................
Occupation of witness ......Retired teacher..........................................
_____________________________________________________________
This statement (consisting of 2 pages, each signed by me) is true to the best of
my knowledge and belief and I make it knowing that, if it is tendered in
evidence,
I shall be liable to prosecution if I have wilfully stated in it anything which I know
to be false or do not believe to be true.

Paul Carter
Signed ............................... Dated the 4th day of March 2024
S114(1)(b) - Common Law exceptions preserved
by S118

Confessions - Section 76 PACE 1984

 (1) In any proceedings a confession made by an accused

person may be given in evidence against him in so far as it
is relevant to any matter in issue in the proceedings and is
not excluded by the court in pursuance of this section.
 A confession is hearsay evidence – it is a statement made
outside court tendered by the prosecution in order to prove
that the defendant committed the offence.
Res gestae – preserved common-law
exception
 The statement was made by a person so emotionally
overpowered by an event that the possibility of concoction
or distortion can be disregarded. It is called the
“spontaneous utterance rule”
 R v Andrews [1987] the HOL held that a statement made by
a fatally stabbed man naming his 2 attackers soon after he
was stabbed was properly admitted under the Res Gestae
rule.
 Today recordings of 999 calls and evidence recorded via
bodycams are admitted as hearsay in ‘victimless
prosecutions’ for domestic violence.
Hearsay admissible by agreement – S114(1)(c)
and in the interests of justice – S114(1)(d)
 Hearsay admissible by agreement – S114(1)(c)
If all the parties in the case agree, any form of hearsay evidence may be admissible in evidence.
 Hearsay admissible in the interests of justice – S114(1)(d)
 In deciding whether to admit hearsay evidence under s 114(1)(d), the court must have regard to the
factors in s 114(2):
 (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 para (a);
 (c) how important the matter or evidence mentioned in para (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 not;
 (h) the amount of difficulty involved in challenging the statement; and
 (i) the extent to which that difficulty would be likely to prejudice the party facing it.
 In assessing these factors, the court will need to have regard to the defendant’s right to a fair trial
enshrined in Article 6 of the ECHR
Safeguards against admissible hearsay
 If hearsay evidence is admitted by the court, the maker of the
statement will not be in attendance at court to give oral evidence. This
will deprive the other party of the opportunity to cross-examine the
maker of the statement in an attempt to undermine that person’s
credibility as a witness. Thus contravening Article 6 especially 6(3)(d).
 S124 of the CJA 2003 permits the following evidence to be admissible:
 (a) any evidence which (if the witness had given oral evidence) would
have been admissible as relevant to his credibility as a witness; and
 (b) with the leave of the court, any evidence which (if the witness had
given oral evidence) could have been put to him in cross-examination
as relevant to his credibility as a witness (for example, evidence that
the witness had previous convictions for offences where he had been
untruthful, such as perjury).
 S126(2) provides that nothing in the CJA 2003 concerning the
admissibility of hearsay evidence prejudices the court’s overriding
general power to exclude evidence under s78 of PACE 1984.
The procedure for admitting hearsay evidence
 The procedural rules to be followed should a party seek to rely on hearsay evidence
at trial (or to challenge the admissibility of hearsay evidence on which another party
seeks to rely) are contained in Part 20 of the CrimPR. These rules do not, however,
apply in all cases when a party wishes to use hearsay evidence at trial. The rules in
Part 20 only apply to cases where:
 (a) it is in the interests of justice for the hearsay evidence to be admissible (s114(1)
(d));
 (b) the witness is unavailable to attend court (s 116);
 (c) the evidence is multiple hearsay (s 121); or
 (d) either the prosecution or the defence rely on s 117(1) for the admission of a written
witness statement prepared for use in criminal proceedings
 Thus the rules in Part 20 will not apply if the prosecution call the interviewing officer to
repeat the confession made by the defendant when he gives evidence at trial.
 A party wishing to adduce hearsay evidence to which Part 20 applies, or to oppose
another party’s application to introduce such evidence, must give notice of its intention
to do this both to the court and to the other parties in the case (CrimPR, r 20.2).
Notice must be given using a set of prescribed forms. Time limits are applicable.
Defence opposition
 Defence opposition to a prosecution hearsay application is based either on the suggestion that the
prosecution cannot establish the ground for its admission or, more likely that its admission would
lead to an unfair trial.
 If the CPS adduce the relevant evidence to discharge their burden in proving the ground under the
relevant criteria under the CJA 2003. The defence would then need to raise the question of the
defendant’s right to a fair trial under Article 6 of the Convention in arguing that the statement should
not be admitted. Further, S126(2) CJA 2003 – S78 PACE 1984 discretion preserved under the Act
(probative value of the hearsay evidence is outweighed by the prejudicial effect) should also be
raised.
 The defence need to clarify in each individual case why there is a real need to cross-examine the
witness and thus why they would not agree to the evidence being read under S9 CJA 1967.
 The court should be remined of the principles emanating from relevant case-law such as Al-
Khawaja (2011), Horncastle (2009) and Riat, Doran, Wilson, Claire, Bennet [2012].(Manual 18.14).
 Although it has been determined that hearsay evidence does not automatically infringe a
defendant’s right to a fair trial. The courts should be concerned with establishing whether there is a
good reason for the witness’s non availability and ensure sufficient counterbalancing measures
including the existence of strong procedural safeguards to ensure a fair and proper assessment of
the reliability of the evidence before it is admitted as hearsay.