Hearsay evidence – A guide

What is hearsay evidence?

Hearsay evidence is a statement made outside of court that is presented in court to prove something as true. Instead of directly witnessing an event, a witness may give evidence of what someone else told them, wrote to them, or communicated in some other way.

Hearsay is defined under Section 114 of the Criminal Justice Act 2003 (CJA 2003) as “a statement not made in oral evidence in the proceedings that is relied on as evidence of any matter stated.” The statement could be spoken, written, or communicated through gestures or pictures.

Hearsay will involve a statement of a matter of fact which is relevant to the case. For hearsay evidence to apply, the original speaker must have intended for their statement to be believed as true by the person who heard it.

Is hearsay evidence allowed to be used as evidence in court?

Hearsay evidence is usually not allowed in court because it is seen as less reliable. The person who originally made the statement is not under oath, cannot be cross-examined, and may not even be present in court.

Exceptions

Although hearsay is generally not allowed, there are some important exceptions which allow types of hearsay evidence to be admitted into proceedings,

A Law Allows It (statutory exceptions):

There are several situations where hearsay evidence is allowed under the law under statutory ‘gateways’:

Under s116 CJA 2003, if the original witness is either:

• dead
• unfit to be a witness because of their bodily or mental condition
• the person is outside the United Kingdom, and it is not reasonably practicable to secure their attendance at court
• the person cannot be found
• the person does not give (or does not continue to give) oral evidence through fear,

the court may allow hearsay evidence to be admitted.

Another example of a statutory gateway is where a statement contained in a business document is admissible if it suffices the requirements under s117 CJA 2003.

Another statutory gateway under S119 CJA 2003 allows that if a witness gives evidence that contradicts a previous statement given, that earlier statement can be admitted as hearsay evidence.

It is one of the common law exceptions preserved by section 118 CJA 2003

The common law principle of Res Gestae allows certain statements made during or right after an event to be used as evidence. For example:

• Statements made when a person is overwhelmed by emotion during an event.

This includes statements made when a person is so emotionally overpowered by an event that the possibility of distortion of the facts can be disregarded.

• Statements that help explain actions being taken at the time.

This includes statements accompanying an act which can only be properly evaluated in conjunction with the statement.

• Statements describing a person’s physical or mental state, which are treated as reliable at that moment.

This includes statements about their opinion are considered evidence of the truth of their state at the time when describing it.

Published works and documents which would be accessible to the public will also be admissible.

All parties to the proceedings agree to it being admissible.

Where the Crown Prosecution Service and the defence agree for the evidence to be admitted, it can be admitted.

The court is satisfied that it is in the interests of justice for it to be admissible.

Hearsay may be admitted if it is in the interests of justice to do so. This gives the court discretion to consider whether the evidence is reliable and necessary in the context of the case.

Hearsay evidence is typically excluded in UK criminal trials due to concerns about its reliability, but there are significant exceptions under the Criminal Justice Act 2003.

These exceptions allow for hearsay evidence to be admitted in specific circumstances, provided certain safeguards are in place to ensure a fair trial.

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