Exceptions to the hearsay rule

• Exceptions to the hearsay rule
• Statutory provisions - Cases where a witness is unavailable
• Business documents
• Statements admitted under sections 9 or 10 Criminal Justice Act 1967
• Common law exceptions
• Res gestae
• Confessions; Confessions by an agent eg company director
• Expert evidence and reference to the works of others in their field
• Credibility
• Capability
• Section 124 CJA 2003
• Unconvincing and unsatisfactory evidence
• Additional requirement for admissibility of multiple hearsay
• Evidence given at retrial
• Memory refreshing
• Video recording

Exceptions to the Hearsay Rule

1. There are many exceptions to the rule against hearsay, allowing hearsay evidence to be admitted at trial. The range of these exceptions and the flexible interpretation of the exceptions have contributed to the difficulties in applying the rule. However, the Criminal Justice Act 2003 (CJA 2003) simplifies and relaxes certain aspects of the rule and the exceptions to it.

2. The new provisions of the CJA 2003 came into force on 4 April 2005. They set out when hearsay evidence will be admissible and when it can be excluded.

3. The new provisions will apply only to trials begun on or after the date of commencement ¹.

4. The CJA 2003 clarifies the position by making sketches, photofits etc. hearsay ². The Act seeks to retain the distinction at common law between real evidence and hearsay. Evidence that is purely mechanically produced, such as a photograph or CCTV footage of an offence, is not subject to the hearsay rule. If evidence is produced by a computer or machine, but relays information that has been supplied by individuals, the hearsay rule will apply if the party seeks to rely on the printout to prove that what the person (supplier) said was true.

5. Section 129 CJA 2003 provides a further safeguard:

"(1) Where a representation of any fact –

1. is made otherwise than by a person, but
2. depends for its accuracy on information supplied (directly or indirectly) by a person,

the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate."

6. Statements adduced pursuant to, and satisfying, section 129 are not hearsay. Because the document produced by mechanical means is not hearsay, there is no infringement of the rule against multiple hearsay (ie information passing through many hands in the course of business). If the information is accurate, there is nothing to prevent the accuracy of the data being proved by any admissible means.

7. Under section 114(1), evidence amounting to hearsay will be admitted by the court (subject to its general discretion to exclude evidence – see para 48 below) if :

1. there are statutory provisions allowing it to be ³;
2. it falls within a common law exception preserved by section 118 CJA 2003;
3. the parties agree to it being admissible; or
4. the court is satisfied that it is in the interests of justice for it to be admissible (see below).

8. The new statutory exceptions introduced by the Act are replacements for sections 23 and 24 CJA 1988.

9. In deciding whether it is in the interests of justice for hearsay to be admitted (see above), the court must have regard to the factors set out in section 114(2) and any others it considers relevant⁴.

10. These exceptions overlap and hearsay may well be capable of being admitted under a new statutory provision, an old common law exception or the 'interests of justice' discretion.

Statutory provisions

Cases where a witness is unavailable

11. Under section 116 CJA 2003, first hand (as opposed to multiple) hearsay evidence, whether oral or documentary, is admissible (subject to the court's general discretion to exclude it – see para 48 below) provided:

• Oral evidence in the proceedings would be admissible of that matter;
• The witness is identified to the court's satisfaction;
• Any of the following five conditions is satisfied:
  1. The person is dead:
  2. S/he is unfit to be a witness because of a physical or mental condition;
  3. S/he is outside of the UK and it is not reasonably practicable to secure his/her attendance⁵;
  4. S/he cannot be found despite reasonably practicable steps having been taken;
  5. S/he does not give oral evidence through fear and the court gives leave for the statement to be given in evidence.

12. Article 6(3)(d) of the European Convention on Human Rights⁶ specifies the right of the accused "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". This right is not absolute, and whether reliance on section 116 is challenged on Article 6 grounds may depend on whether the defence has the opportunity to challenge, at some stage, the evidence of the missing witness and/or whether the prosecution case is based solely on the evidence of the absent witness – would there be a case to answer without it?

Business documents

13. Section 117 CJA 2003 closely replicates section 24 CJA 1988. The distinction between business documents prepared for criminal proceedings and business documents that have not been prepared for criminal proceedings is retained, and in order for documents prepared for criminal proceedings to be admissible, either the witness must be unavailable - in accordance with the provisions of section 116 CJA 2003 – or the person making the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement.

14. The section applies only to documents. In some cases, a document may record what somebody else has said (eg works manager's accident report book may contain statements by workers).

15. There is a three stage admissibility test:

• The document 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 an office;
• The supplier of the information must have had, or be reasonably supposed to have had, personal knowledge;
• Where information has passed through a number of hands, each person must have received it in the course of trade, business etc.

16. A court may exclude a document if its reliability is doubtful in view of the source of the information, or the manner in which it was created or received. Care should accordingly be taken when reviewing such statements.

17. The rule permits multiple hearsay, and avoids difficulties where it is not clear who supplied the information, provided there is every reason to assume that it is reliable and provided oral evidence could be given by somebody of the matter; the fact that that might be a person other than the maker of the statement is irrelevant.

Statements admitted under sections 9 or 10 Criminal Justice Act 1967

18. The Criminal Justice Act 1967 (CJA 1967) provides for the admissibility of written statements in criminal proceedings, other than committal proceedings, to the same extent that oral evidence to the like effect by that person would be admissible. The statement must be signed. It must also contain a declaration of truth ⁷.

19. If you intend to rely on the statement in evidence, you should serve a copy of it on the other parties. If a party, within seven days thereafter, objects to the statement going in as evidence, then the statement cannot be used and the witness will need to be called to give oral evidence to the court. Therefore, section 9 statements are only admissible if all parties agree.

20. Section 9 CJA 1967 is preserved by the CJA 2003.

21. Under section 133 CJA 2003, where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either the document or a copy of it or the material part of it, authenticated in whatever way the court may approve.

22. Section 10 CJA 1967 provides that any fact of which oral evidence may be given in criminal proceedings may be formally admitted, for the purposes of those proceedings, by either the prosecution or the defence. Formal admissions are discussed in the Rules of Evidence section.

Common law exceptions

23. Section 118 CJA 2003 preserves certain common law categories of admissibility:

1. public records;
2. common law rules on reputation and tradition;
3. statements forming part of the res gestae;
4. confessions by an accused;
5. admissions by an agent, eg a company director;
6. common enterprises
7. experts' reference to the works of others within their field

Res gestae

24. The phrase "res gestae", which means "a transaction", is used to describe an out of court statement which relates to and is closely associated in time and place with a state of affairs or event so that it can be said that they form part of the "same transaction". An example is spontaneous statements made by onlookers in response and at the same time as the commission of the offence in question ⁸.

25. A commonly used example is a statement made by witness A, the victim of an attack, in the presence of witness B, made just after the attack, indicating the identity of the attacker⁹.Under the "res gestae" exception witness B may be able to give admissible evidence of what was said by witness A. The rationale is that there is thought to be less danger of concoction or fabrication of the evidence in circumstances where the events in question are likely to monopolise the thoughts of the witness.

26. Where the statement relates to a specific event, the question for the court is whether the possibility of concoction or distortion can be disregarded. The court will consider the circumstances in which the statement was made to decide whether the event was so unusual or startling or dramatic as to dominate the thoughts of the person such that the words spoken were an instinctive reaction to the event ¹⁰.

27. Where the statement relates to the maker's state of mind, emotional or physical state, the statement is admissible to prove the state of the maker of the statement at the time when the statement was made. It is not admissible to prove the cause of this state.

28. This exception should not be used as a substitute for calling an available witness ¹¹, but may be relevant where a fatally injured person has made a statement immediately after an accident, to a work colleague or other person. Careful consideration will need to be given to the use of such statements, to ensure that the defendant has the right to challenge such evidence. This again takes account of the requirements of Article 6 ECHR.

Confessions; Confessions by an agent eg company director

29. A confession of an accused includes a statement that is wholly or partly contrary to the person who made it. It is not necessary for the statement to be made to a person in authority ¹².

30. Confessions obtained without a caution are likely to be found inadmissible. See the Investigation section - Admissibility of confessions^[166].

31. The confession of the accused, made in the presence of a third party (who may also be a co-accused) is admissible as an exception to the hearsay rule as part of the evidence given by that third party, provided it complies with section 76 of the Police and Criminal Evidence Act 1984 ¹³ . Such confessions amount to informal admissions and are statements that are, or turn out to be, adverse to the case of the person who makes it. Such statements are generally admissible to prove the truth of the facts they contain, so long as the statement was originally made by a defendant.

32. In the case of an `officer' or `agent' of the company, they are in effect the embodiment of the company. A confession made by him or her will amount to an informal admission, and will be admissible under PACE. You must ensure that the agent or officer of the company making the confession is authorised to do so by the board of directors, or equivalent, for the body corporate.

33. The existing rule that evidence of verbal statements or confessions given by a third party (ie someone other than an accused) is inadmissible hearsay ¹⁴ is retained. First-hand hearsay (a statement made by a person in a document) is admissible, subject to sections 116 and 117.

34. New provisions relating to confessions by a co-accused are set out in section 128 of the CJA 2003, which inserts a new section 76A in the Police and Criminal Evidence Act 1984.

35. The effect of this new section is that, subject to certain safeguards, a confession made by a co-accused may be given in evidence for another person charged in the same proceedings. The confession must be relevant to any matter in issue in the proceedings.

36. For example, in a joint trial of two defendants, a confession made out of court by Defendant A may now be put in evidence by Defendant B as evidence of the facts stated, as long as the confession is relevant to Defendant B's defence, provided that the confession meets the provisions set down in 76A. However, the court must be satisfied on the balance of probabilities that the confession was not obtained by oppression or in consequence of anything likely to render the confession unreliable, and in doing so should ensure that the accused's rights to a fair trial under Article 6 are respected.

37. The fact that a confession has been wholly or partly excluded as a consequence of these provisions does not affect the admissibility in evidence of any facts discovered as a result of the confession. For example, as a result of information gained from a confession some documentary evidence was found in a storage facility of a factory. In these circumstances that material would be admissible (provided that it could be properly introduced on its own merit), even if the confession was ruled inadmissible.

38. In addition, if the nature of the confession is such as to show that the accused speaks, writes or expresses himself in a particular way, then as much of the confession as is necessary to show this point will be admissible. Evidence of how such facts were discovered will be inadmissible unless this evidence is given by the defendant or on his behalf. Such evidence must be introduced as an exhibit to a witness statement.

Expert evidence and reference to the works of others in their field

39. Once the primary facts on which the expert's opinion is based are proved, the expert can rely upon things written or said by other experts ¹⁵. The expert should specifically refer to this other work. This is confirmed by section 118 CJA 2003. You should refer to the 'Expert Evidence^[167]' section for further details.

40. To the extent that expert evidence relies upon an earlier report, the report will be hearsay. However, as per section 127, it may be admissible, but only if the person who provided the original information can reasonably be supposed to have had personal knowledge of the matters stated. When expert evidence relies on such a statement, notice must be given to the defence, who must be given the name and address of the person whose statement is relied upon. The defence will then have an opportunity to object and where this occurs, the court must decide whether it is in the interests of justice to permit the expert to base his or her conclusion on the hearsay statement, or whether the supplier of the original information should also be called as a witness.

Credibility

Previous inconsistent statements

41. Section 119 CJA 2003 changes the law. Whereas a previous inconsistent statement went only to weaken or cancel out the credibility of a witness, the statement as proved ¹⁶ will now be evidence of any fact of which direct oral evidence by the statement maker would be admissible. The judge will direct the jury as to the appropriate weight to be attached to the statement, taking into account Article 6 ECHR considerations.

Previous consistent statements

42. The previous consistent statements of a witness have not as a general rule been admissible prior to the CJA 2003. They were allowed to be used for certain specific circumstances, including for refreshing the memory (see Memory refreshing), to rebut allegations of recent fabrication, for previous consistent identification and the reaction of the accused when the accusation was first put to him or her.

43. Under section 120 of the CJA 2003, if a statement is admitted, it will only go to the consistency of the witness, not to the truth of its contents. A previous consistent statement made by a witness called to give oral evidence will be admissible in one of three ways:

• to rebut a suggestion that his or her oral evidence had been fabricated; ¹⁷
• to refresh a witness's memory, on which he has been cross-examined; or ¹⁸
• as an out of court statement falling within section 120(4)-(7), viz:
• the statement identifies or describes a person, object or place or
• the statement was made when the matters stated were fresh in the witness's memory but he does not remember them and cannot reasonably be expected to do so well enough to give oral evidence in proceedings; or
  1. the witness claims to be a person against whom the offence was committed; and
  2. the offence is one to which the proceedings relate;
  3. the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence; and
  4. the complaint was made as soon as could be reasonably expected after the alleged conduct; and
  5. the complaint was not made as a result of a threat or a promise; and
  6. before the statement is adduced the witness gives oral evidence in connection with its subject matter.

Capability

44. Under section 123 of the CJA 2003, a statement will not be admissible as evidence under sections 116, 117, 119 or 120 if it was made by a person who did not have the required capability at the time when he or she made the statement. 'The required capability' means that the witness should be capable of understanding questions put to him about the matters stated and giving answers to those questions that can be understood.

Section 124 CJA 2003

45. Under section 124 of the CJA 2003, if, in criminal proceedings, a written statement is admitted as evidence and the statement maker does not give oral evidence, then:

• any evidence relevant to the witness's credibility is admissible; and
• evidence which could otherwise be put in cross-examination as relevant to his credibility as a witness can be given with the court's leave; and
• evidence that he or she made any other inconsistent statement is admissible for the purpose of showing that the witness contradicted himself.

46. The maker of the statement for these purposes and for the purposes of section 117 is each person who supplied or received the information, or created or received the document. If evidence is admitted under section 124, and an allegation is subsequently made against the maker of the statement, the court may permit the party to lead additional evidence of such description as may be specified by the court for the purpose of meeting the allegation.

Unconvincing and unsatisfactory evidence

47. Under section 125 CJA 2003, in a Crown Court trial, if the court is satisfied – following the close of the case for the prosecution – that the case against the defendant is based either wholly or partly on a statement not made in oral evidence in the proceedings and the evidence in the statement is so unconvincing that, considering its importance to the case against the defendant, his or her conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or – if it considers that there ought to be a retrial – the court must discharge the jury.

48. Section 126 CJA 2003 sets out the court's general discretion to exclude evidence. Under this provision, the court may refuse to admit a written statement as evidence if the statement was made otherwise than in oral evidence. The court will need to be satisfied that the case for excluding the statement (taking account of the danger that to admit it would result in an undue waste of time) substantially outweighs the case for admitting it, whilst considering the value of the evidence. This does not restrict the court's general powers to exclude #evidence, either under section 78 of the Police and Criminal Evidence Act 1984 (exclusion of unfair evidence) or generally at common law (see Collecting witness evidence – Admissibility of confessions^[168]).

Additional requirement for admissibility of multiple hearsay

49. Under section 121 of the CJA 2003, a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless:

• either of the statements is admissible under sections 117, 119 or 120; or
• all the parties to the proceedings agree; or
• 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.

50. For the purposes of this section, 'hearsay statement' means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.

Evidence given at retrial

51. Section 131 CJA 2003 replaces paragraphs 1 and 1A of schedule 2 of the Criminal Appeal Act 1968. The section deals with evidence given at retrial and states that evidence that was given orally at the original trial must be given orally at the retrial unless all parties to the retrial agree otherwise or section 116 CJA 2003 applies or the witness is otherwise unavailable but the court decides it is in the interests of justice for the statement to be admitted.

Memory refreshing

52. A witness giving oral evidence in court may use a document to refresh his or her memory, provided that the document was made (or verified) by him at an earlier time, and provided:

• he states that the document records his recollections of the matter at that earlier time and
• his recollection of the matter is likely to have been significantly better at the time the document was made, than at the time of his oral evidence

53. Where a witness is giving oral evidence about matters to which he has already given a recorded oral account, and he states that the account represents his recollection of the matter at the time, and his recollection of the matter is likely to have been significantly better at the time of the previous account and a transcript of the recording has been made, then the witness may use the transcript to refresh his memory ¹⁹

Video recording

54. For offences triable on indictment or for prescribed triable either way offences, the court can authorise the video recording of an interview with a witness to replace evidence in chief for that witness (see Physical Evidence in Court - Sound and Videotape Recording^[169]).

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Footnotes

1. Section 141 CJA 2003. For guidance on the provisions applying to trials begun before 4 April 2005, see OC168/10. Back to reference of footnote 1
2. Section 115 CJA 2003. Back to the reference of footnote 2
3. Section 9 CJA 1967 and schedule 2 CPIA 1996. Back to the reference of footnote 3
4. The factors listed in section 114(2) CJA 2003 include: the probative value of the statement; other evidence that could be given on the same matter; the importance of the statement to the case; the circumstances in which it was made; how reliable the maker (and evidence of the making) of the statement appears to be; whether oral evidence can be given and, if not, why not; how difficult it would be to challenge the statement; and the prejudice that may be caused to the other party by not being able to challenge it. Back to reference of footnote 4
5. If a party applies to the court to exclude a statement admitted into evidence on the basis of this condition, reasons will need to be provided to the court by the party seeking to rely on the statement in court as to why it is not reasonably practicable either to secure the witness's attendance or to arrange an alternative procedure (such as giving evidence by video link) whereby the contents of the statement could be clarified and challenged - R v C & K [2006] EWCA Crim 197. Back to the reference of footnote 5
6. The European Convention on Human Rights (ECHR) was incorporated into domestic law by the Human Rights Act 1998. Back to the reference of footnote 6
7. A declaration of truth is a declaration that the statement is true to the best of the maker's knowledge and belief and that he or she is aware that they will be liable to prosecution, if any thing is stated which the witness knows to be false, or does not believe to be true. Back to reference of footnote 7
8. Ratten v The Queen [1972] AC 378, PC. Back to the reference of footnote 8
9. For example, R v Turnbull (1984) 80 Cr. App. R. 104: a man who had been fatally stabbed staggered into a pub; while in the pub and an ambulance subsequently he gave the name of the man who had attacked him; the statements were admitted.Back to the reference of footnote 9
10. R v Andrews [1987] AC 281, HL: the victim, who subsequently died, was stabbed by two men in his own home; neighbours called the police within minutes, they arrived promptly, and the victim identified his attackers to them; evidence was admitted of the victim's statement. Back to the reference of footnote 10
11. R v Andrews [1987] AC 281, HL. Back to the reference of footnote 11
12. S 82(1) Police and Criminal Evidence Act 1984. Back to the reference of footnote 12
13. S76 Police and Criminal Evidence Act 1984 allows the exclusion of confession evidence if, inter alia, it is likely to be unreliable. Back to the reference of footnote 13
14. R v Turner (BJ) 1975 61 Cr App R 67 CA; R v Blastland [1986] AC41 HL. Back to the reference of footnote 14
15. section 118 CJA 2003. Back to the reference of footnote 15
16. ie under sections 3,4 or 5 Criminal Procedure Act 1865. Back to the reference of footnote 16
17. See section 120(2) CJA 2003. Back to the reference of footnote 17
18. See section 120(3) CJA 2003. Back to the reference of footnote 18
19. CJA 2003 section 139. Back to the reference of footnote 19