Statutory exceptions to the hearsay rule

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The law in this area has been significantly modified at a techical level by the CJA_2003, although the basic principle remains the same: in a criminal trial, the law seeks to exclude out-of-court (Hearsay) statements whose veracity is doubtful, which are likely to be easy to fabricate, and which cannot be challenged by cross-examination.

The similarity of these general principles justifies (I think) only describing in detail the new provisions, but I will indicate where they are significantly different from the old ones.

The CJA2003 abolishes allCommon Law Exceptions To The Hearsay Rule and existing statutory exceptions, except where specifically preserved by s.118. In fact, s.118 preserves most of the important common-law exceptions (ResGestae, Confession, etc), but statutory clarification is provided in some areas.

Definition of 'hearsay'

The Act provides a statutory definition of hearsay evidence. s.114 states that hearsay evidence is

a statement to be admitted as evidence of any matter stated;

s.115 goes on to define a statement as

any representation of fact or opinion ... by whatever means ... which was made to cause another person to believe the matter or to cause another persion to act ... on the basis that the matter is as stated.

This definition is different from the one that can be inferred from the pre-2003 law in two important ways. First, under the 2003 Act the statement can be in any form, including a sketch or picture. At present, these are not capable of being considered hearsay if made for the purposes of indentification (which is an anomaly). Second -- and far more importantly -- a statement is only hearsay if it was made with the purpose of causing another person to believe it, or act as if it was true. So statements tendered as evidence that, for example, they were written, or that the writer expresses himself in a particular way, will not amount to hearsay (as is the case now). However, an Implied Assertion will no longer amount to hearsay, effectively reversing the controversial decision in R V Kearly 1992. Thus conduct can still amount to hearsay, but only if it was intended to influence another person to believe or act a certain way. In Kearly, the House of lords had decided, by a bare majority, that evidence that phone calls had been made to the defendant asking for drugs could not be admitted as evidence that the defendant could supply drugs. I believe that this is a change for the worse, for reasons that are explained in the articule on implied assertion. I also believe that making the definition of hearsay depend on the purpose for which the statement was made will to a great deal of uncertainty (consider the problems that have arisen with the use of the word Intention in the definitions of many criminal offences).

In short, a hearsay statement is one made out of court, by any medium, for the purposes of causing a person to act as if the statement were true, and which is tendered as evidence that it is true.

The general principle: hearsay is excluded

Under the 2003 Act, it remains the case that hearsay evidence (so long as it fits the definition in ss.114-5) is not admissible. However, as is the case now, certain categories of hearsay are admissible, and these categories are largely unchanged in the new law. What is different, however, is that the categories that are included are automatically admissible, subject to a discretion to exclude them. In the pre-2003 law, they are admissible only by the discretion of the court.

Because the 2003 Act abolishes all common-law principles concerning hearsay evidence, it follows that any evidence that does not fit the new definition of hearsay is admissible. It is not_ the case that its admissibility falls to be determined under the old principles.

The first exception: witness unavailable

According to s.116, hearsay evidence is automatically admissible if the maker of the statement is not available for any of the following reasons, and the maker can be identified.

  1. He has died
  2. He is unfit to be a witness (because he is ill or insane)
  3. He is outside the UK and it is not reasonably practicable to fetch him
  4. He cannot be found

In addition, hearsay evidence from an identified souce is admissible, with the leave of the court, if

  • He does not give oral evidence through fear.

s.116(4) sets out the conditions under which leave will be granted to allow hearsay evidence from a witness who does not testify out of fear. It has to be 'in the interests of justice', and the court must have regard for the difficulty of challenging the evidence, and whether a speicial measures direction would be more appropriate (see special measures for witnesses).

This category of hearsay evidence was formerly admissible under the CriminalJusticeAct1988, but only at the discretion of the court.

Note that hearsay evidence from unidentified sources is not only not automatically admissible, it is not admissible at all under this section. Some jurisdictions do allow hearsay from unidentified sources in some cases, but this concept has never found favour in the UK. However, it is not true to say that the 2003 Act never allows for the admissibility of hearsay from unidentified sources; more on this later.

The second exception: business documents

Under s.117, a statement created or received in the course of a trade, profession, or office is admissible if

  1. The person who made the statement might reasonably be expected to have knowledge of the matter,
  2. Oral testimony of the maker would have been admissible (this prevents, for example, the comments of small child being made admissible simply because they were recorded by a constable)

In addition, a statement made during a criminal investigation is admissible if

  1. The person who made the statement cannot be expected to have any recollection of the matter.

So if a person makes a statement to a constable concerning, say, the registration number of a car involved in a crime, the constable's written note of the registration number will be admissible, even though the person who provided it will long since have forgotten.

This additional ground for admissibility -- that the statement was made in a criminal investigation -- can be excluded by the court if it appears to be unreliable. However, provided the requirements of s.117 are met, no discretion is provided to exclude other business documents. However, since the 2003 Act does not disturb any existing discretion of the court to exclude prosecution evidence on the basis that it is prejudicial, it is only defence evidence that is unconditionally admissible under this section.

This category of hearsay evidence was formerly admissible under the CriminalJusticeAct1988, but only at the discretion of the court.

The 'safety valve'

In addition to the two categories of hearsay evidence for which there is a presumption of admissibility (absent witness and business documents), the court has an overriding discretion to admit hearsay under s.114(1)(d) where it is 'in the interests of justice' to admit it. The inclusion of this provision, which the Law Commission refered to as th 'safety value' is in recognition of the fact that no set of rules will suffice to do justice in all cases. Section 114(2) provide a long list of factors which the court must take into account when deciding whether to exercise this discretion. These are mostly common sense. For example, the court must consider how easy it will be to challenge the evidence, what other evidence is available to prove the same issue, how relevant it is, how reliable the maker of the statement appears to be, and how prejudicial it would be to the defendant. Note that there is no specific limit on the exercise of this discretion. The court can, in principle, admit evidence from unidentified sources under this section if it appears just to do so.

This 'safety valve' provision is entirely new in the 2003 Act. Previously, courts had no discretion to admit hearsay where it did not fall into one of the existing categories of exceptions to the hearsay rule. This led to a situation where appeal courts, faced with a manifest injustice, had to disguise the admission of hearsay as something else. On the one hand, such judicial sleight-of-hand should not longer be necessary; on the other, one has to wonder whether such a broad discretion will allow for proper certainty in the law. In its report on hearsay evidence, the Law Commission cited the erratically-exercised discretion under the criminal justice act (1988) as a good reason to broaden the admissibility of hearsay; but s.114(1)(d) provides an unparallelled opportunity for inconsistent precendents to be created.

Multiple hearsay

Hearsay evidence to prove that an earler hearsay statement was made ('multiple hearsay') is not admissible under the 'absent witness' exception (except by agreement of the parties). It is admissible under the 'business documents' exception, provided that all the documents in the chain would be admissible. It is also admissible if admitted under the new provisions in s.119 and s.120. These provisions allow for statements that are admitted in evidence to prove or rebut an allegation of

fabrication to stand as evidence of the truth of their contents (and not just of evidence of the witness's credibility or lack of it). Now, such statements can be admitted as evidence that a hearsay statement was made. This is not a complex provision, although it seems like it. If a person is allowed to take the witness stand and give evidence of a hearsay statement that was made to him, a previous statement that was made by that witness, and is admitted, has the same evidential status as his oral testimony. So if the witness can evidence a hearsay statement in testimony, his previous statement can evidence it as well.

Hearsay admissible by agreement

Hearsay evidence, including multiple hearsay, is automatically admissible if all parties agree to it being admitted. This is technically a new provision but, in practice, it is likely that a great deal of hearsay evidence slipped into the jury's hands because counsel did not challenge it, or even notice it.

Discretion to stop the proceedings

s.125 provides that a court may stop proceedings if it appears that the prosecution case rests wholely or partly on hearsay, and a conviction would be unsafe.