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08 October 2021

The exceptions to the rule of hearsay evidence

10 mins

As stated in our previous article, hearsay in criminal cases can be identified using the approach set out in R v Twist [2011] 2 Cr App R 17 and the statutory framework established by the Criminal Justice Act 2003 (CJA). The general rule is that hearsay statements are inadmissible unless they come within an exception. This article will explore those exceptions.

The exceptions

Section 114 CJA sets out four exceptions to the general rule that hearsay statements are inadmissible in criminal proceedings, which are as follows:

  1. The statement is admissible under a statutory provision of CJA or any other statutory provision;
  2. the statement is admissible under a preserved common law exception;
  3. all of the parties in the proceeding agree to admit the hearsay statement; or
  4. the court is satisfied that it is in the interests of justice for the hearsay statement to be admitted.

Moving on to explore those exceptions in more detail:

Exception one: The statement is admissible under a statutory provision of CJA or any other statutory provision

The relevant statutory provisions in CJA are as follows:

1. The maker of the statement is unavailable to appear as a witness (s. 116)

A hearsay statement may be admissible in criminal cases if the person who made the statement:

  • Could have given oral evidence (which is admissible) in court
  • Is identifiable (this means that the witness’ name must be known)
  • Is unavailable for one of the following reasons:
    • The person is dead;
    • the person is unfit to be a witness, because of their physical or mental condition;
    • they are outside the UK and it is not reasonably practicable to secure their attendance;
    • they cannot be found despite reasonably practicable steps having been made to find them; or
    • they cannot give oral evidence in the case through fear, and the court gives leave for their statement to be given in evidence.

2. The statement was made in a business or professional document (s.117)

Business records may be admissible hearsay because they are usually prepared by people who are not influenced by any personal advantage and are therefore likely to be accurate.

To be admissible, the document must meet the following criteria:

  • It must have been created, or received, in the course of a trade, business, or profession;
  • the supplier of the information in the document must be shown to have some personal knowledge of the facts related; and
  • where the document contains information that has been passed from person to person, each person receiving the information must have done so in the course of a trade, business, or profession.

3. The statement is a previous inconsistent statement, or previous consistent statement, of a witness

Previous consistent statements

The general rule in criminal proceedings is that a witness may not be asked in examination-in-chief about a previous statement which is consistent with the testimony they give orally in court, in order to show the consistency of that witness.

There are, however, several exceptions to this rule.

Memory-refreshing documents
A person giving oral evidence may, in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time, if:

  • He states in his oral evidence that the document records his recollection of the matter at that earlier time; and
  • his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.
  • Once the witness has refreshed his memory from the document, it must be removed from them and they will resume giving their testimony.

Previous identifications
A previous statement by a witness is admissible if, while giving evidence, the witness indicates to the best of his knowledge and belief that he made the statement, and that to the best of his belief it states the truth, and that the statement identifies a person, object or place.

Previous complaint
A previous complaint by a witness is admissible if, while giving evidence, the witness indicates to the best of his knowledge and belief he made the statement, and:

  • That to the best of his belief it states the truth;
  • the witness claims to be a victim of an offence;
  • the offence is the offence to which the current proceedings relate;
  • the statement consists of a complaint made by the witness about conduct which would, if proved, constitute the offence or part of it;
  • the complaint was not made as a result of a threat or a promise; and
  • before the statement is adduced, the witness gives oral evidence in connection with its subject matter.
  • Statements in rebuttal of recent fabrication

If a previous statement by a witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible.

Statements upon accusation
A statement that is made by a suspect will generally be made in response to questioning by police officers. Three types of statement can be made when someone is accused in this way:

  • Admissions: Admission statements are admissible as a confession.
  • Exculpatory statements: In other words, a statement denying any involvement in suspected criminal activity. These kinds of statements are admissible as evidence of the attitude and reaction of the accused when presented with facts that incriminate them. Such a statement is therefore evidence of the consistency of the accused’s defence.
  • Mixed statements: These are statements that contain both incriminatory and exculpatory elements. The whole of the mixed statement is admissible.
Previous inconsistent statements

A previous inconsistent statement is any statement made by a witness prior to giving evidence, which is inconsistent with the testimony they subsequently give in evidence.

If a witness admits having made a previous inconsistent statement, said statement having been put to them, then the statement becomes part of the witness’ evidence. This means that no further proof of the statement is required.

On the other hand, where the witness does not admit to having made the previous inconsistent statement, then it must be proved.

Where a document contains a previous inconsistent statement, Counsel usually hands the document to the relevant witness and asks them to read the statement to themselves. Counsel then asks whether they still stand by the evidence that they have just given orally in court. If the witness does stand by the evidence they gave orally in court, then Counsel may choose whether to prove the previous statement. Counsel may do so by asking the witness to read (or reading themselves) the previous statement in court. The court would then test the significance of the inconsistency in court, and the witness would be cross-examined on it.

Where a witness has been cross-examined on the statement, a judge is allowed to make such use of the statement for the purposes of the trial as he may think fit. If the judge decides to put the statement before a jury, then the jury can either accept that the witness’ oral testimony is true, or that the previous inconsistent statement is true, or that both statements are untrue.

Exception two: The statement is admissible under a preserved common law exception

Section 118(1) CJA provides that several common law exceptions to the rule against hearsay are preserved:

Public information
Certain types of public document (as set out in section 118(1)) may be admissible hearsay evidence.

Evidence of reputation
Evidence of a person’s reputation is admissible for the purpose of proving his good or bad character.

Res gestae
Section 118(1) states that the common law rule of Res gestae is preserved. Res gestae statements fall into three different categories.

The first category of res gestae statements are statements that are contemporaneous to an emotionally overpowering event. The test for their admissibility, as set out in R v Andrews [1987] AC 281, is as follows:

  • Can the possibility of concoction or distortion be disregarded?
  • To answer this question, it must be proved that:
    • There was an ‘unusual or startling or dramatic’ event;
    • that event dominated the thoughts of the person making the statement;
    • as a result of that domination, the statement was an instinctive reaction to the event (i.e. the statement was spontaneous);
    • the statement was approximately contemporaneous to the event.

The second category of res gestae statements are contemporaneous statements accompanying an act. There are three requirements:

  • The statement must be approximately contemporaneous to the act;
  • the statement must be made by the person performing the act;
  • the act itself should be relevant to the issues in the case.

The third category of res gestae statements are contemporaneous statements relating to the maker’s physical or mental state. Such a statement will be admissible in order to prove the relevant physical or mental state.

A statement containing a confession is admissible against the maker of said statement.

Admissions by agents
The common law rule whereby admissions made by an agent or a person appointed by the defendant to answer questions on the defendant’s behalf are admissible in evidence against the defendant is preserved.

Common enterprise
If A, in the course of committing a crime, makes a statement that B was also involved in committing the same crime, the common law allows this statement to be admitted at trial as proof of the fact that B committed the crime. In order for such a statement to be admissible, it must be proved that there was a common criminal purpose or enterprise and the statement was made to further that purpose.

Expert evidence
Experts are entitled to rely upon the findings of other experts in their field of expertise (which would otherwise be hearsay).

Exception three: All of the parties in the proceeding agree to admit the hearsay statement

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Exception four: The court is satisfied that it is in the interests of justice for the hearsay statement to be admitted

This exception must be cautiously applied, otherwise, the conditions set out in the other CJA provisions would be circumvented. Section 114(2) provides a list of criteria to which the judge should have regard when deciding whether or not hearsay evidence should be admitted in the interests of justice:

  • How much probative value the statement has in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
  • what other evidence has been, or can be, given on the matter or evidence;
  • how important the matter or evidence is in the context of the case as a whole;
  • the circumstances in which the statement was made;
  • how reliable the maker of the statement appears to be;
  • how reliable the evidence of the making of the statement appears to be;
  • whether oral evidence of the matter stated can be given and, if not, why it cannot;
  • the amount of difficulty involved in challenging the statement;
  • the extent to which that difficulty would be likely to prejudice the party facing it.

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