Chapter 17:

Hearsay Evidence:
 Generally hearsay evidence is inadmissible in Criminal Litigations as the maker of the
Statement cannot be challenged by the Opposite party through XX because of his
unavailability and as such the Quality of the evidence cannot be tested

 A Hearsay evidence can be admissible if:

o There is a valid reason as to why the maker of the statement is not present; AND

o A fair trial can be ensured even if the Hearsay is included as evidence

 To decide whether a fair trial can be ensured, the Court looks into the following factors:

o Whether there is a good reason to include the Hearsay evidence under CJA 2003

o Whether it can be shown that the Hearsay is reliable

 When a Hearsay Evidence is included, the Court should give proper direction to the Jury
regarding the Hearsay Evidence

What is Hearsay Statement:

 A statement is a representation of any fact or opinion made by any person. The
Representation can be made orally or in writing or through pictures, sketches, maps etc.

 A statement is Hearsay if:

o The statement is made out of the Court by a person: AND

o The one of the purpose of making the statement was:

 To cause someone to believe in its content: OR

 To cause someone to act on the basis of its content; OR

 To cause a machine to operate on the basis of its content

 In R v Twist the Court formulated a three stage test to determine whether a statement made
out of the Court is a Hearsay:

o Stage 1: Identify the relevant fact which is to be proved by including the statement
 o Stage 2: Identify whether the statement contains the relevant fact, which the party
tries to prove by adducing the Statement. If the relevant fact is not present within
the statement, then that is not a hearsay.

o Stage 3. Whether the purpose of making the statement was to make other person to
believe in its truth. If the maker of the statement made the statement so that other
person should believe in its truth, then that is a Hearsay. Otherwise, that is not a
Hearsay.

 The following statements are not Hearsay, so are admissible:

o A text message to the Drug dealer asking for Drug. The text message does not
mention that the recipient of the message is a Drug dealer. So the maker of the
statement never intended to make other believe that the Recipient is a Drug Dealer.

o The statement made in a personal Diary as the writer never intended that other
person should read that.

o A CCTV footage is not a Hearsay as that is generated by device other than any
person

Hearsay and Original Evidence:

 If the purpose of adducing the statement is to show that the statement was made, rather than
to make people believe in the content of the statement, then that is Original evidence and
is not a Hearsay. e.g. “I will punch you if you do that again”

 If the purpose of adducing the statement is to show the state of mind of the maker of the
statement then that is not a Hearsay. e.g. “What have I done! I should not do that again.”

 If the purpose of adducing the statement is to show the effect which the statement had on
the recipient, rather than to show the truth of what was said, then that statement is not a
hearsay. e.g. “You are pathetic and not a good man”

 If the purpose of adducing the statement is to show that what was said is not true, then that
is not Hearsay. “I am a man of good character.” But actually the maker of the statement has
previous conviction and is not a man of good character.

Adduce Hearsay Evidence under S 114 of CJA 2003:

 A Hearsay evidence is admissible through any of the 4 gateways under S 114 (1) of the
CJA 2003:

o S 114 (1) (a): If it is admissible under any Provision of Law; OR

 o S 114 (1) (b): If any Rule of Law preserved by S 118 of CJA makes the Hearsay
Admissible; OR

o S 114 (1) (c): If all the Parties agree to include the Hearsay evidence; OR

o S 114 (1) (d): If the Court is satisfied that the Hearsay is admissible to administer
the Interest of justice

Adduce Hearsay Under S 114 (1) (a): under any provision of Law:
 Hearsay evidence can be adduced under S 116, 117 of CJA 2003

S 116 of CJA 2003: Unavailable Witness:

 A hearsay is Admissible under S 116 of CJA 2003 if the followings are satisfied:

o The statement would be admissible if the relevant person i.e. the maker of the
statement was available; AND

o The maker of the Statement is identified by the Court; AND

o Any of the following five conditions under S 114 (2) (a)-(e) are satisfied:

a. The maker of the statement is dead; OR

b. The maker of the statement is not capable to give oral evidence because of his
health or mental condition; OR

c. The maker of the statement is outside UK and it is not practicable to bring him
to the Court; OR

d. The maker of the statement cannot be found by taking reasonable steps; OR

e. The maker of the statement does not want to give oral evidence because of fear

 If the maker of the statement is unanimous, then the statement cannot be adduced as hearsay
under S 116

 If the statement is such that it cannot be adduced even if the maker of the statement gives
oral evidence, then that statement cannot be adduced as hearsay. e.g. statements of bad
character evidence which is not admissible through any of the gateways under S 100 or 101

 If the maker of the witness is not a competent witness (if he was available) then that
statement cannot be adduced as hearsay
 If the party who wants to adduce a Hearsay fails to take reasonable steps to find a witness
or to secure his attendance, then S 116 cannot be used to adduce the Hearsay

 If a witness does not come to court to give oral evidence because of fear then his statement
can be adduced as hearsay.

o Here the fear includes fear of death/injury to the person himself or to another person
or the fear of financial loss

o The fear that is felt by the maker of the statement should have been caused by the
defendant or any other person

o The court should adopt every effort to get the witness to Court to test the issue of
his 'fear' and the court MUST be satisfied beyond reasonable doubt that the witness
does not want to come to court to give oral evidence because of the fear.

 To determine whether a Hearsay is admissible or not under S 116, along with other factors
the Court needs to consider whether it is in the interest of Justice to adduce the Hearsay

S 117 of CJA 2003: Business Documents:

 A statement contained in a document is admissible as Hearsay under S 117 of CJA 2003 if
the followings are satisfied:

o The statement would be admissible if the maker of the statement was available;
AND

o All of the following three conditions are satisfied:

 The documents containing the Hearsay statement was 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, AND

 The person who supplied the information contained in the statement had or may
reasonably be supposed to have had personal knowledge of the fact contained
in the statement, AND

 Each person (if any) through whom the information was supplied to the recipient
was in the course of a trade, business, profession or other occupation, or as the
holder of a paid or unpaid office.

 If the Document is prepared for the purpose of the Litigation then any statement contained
in that document is Admissible as Hearsay under S 117 of CJA 2003 if along with above
requirements any of the following 6 conditions are satisfied:

i. The supplier of the information is dead; OR

 ii. The supplier of the information is not capable to give oral evidence because of his
health or mental condition; OR

iii. The supplier of the information is outside UK and it is not practicable to bring him
to the Court; OR

iv. The supplier of the information cannot be found by taking reasonable steps; OR

v. The supplier of the information does not want to give oral evidence because of fear;
OR

vi. The supplier of the information cannot reasonably recall the information contained
in the statement

 The supplier of the information and the person preparing the document in which the
information is contained can be the same person

o For example: The medical records, any statement written down by a police officer
in the course of his work etc.

 To determine whether a Hearsay is admissible or not under S 117, along with other factors
the Court needs to consider whether it is in the interest of Justice to adduce the Hearsay

 If a Hearsay is admissible under S 117 then it can be excluded under S 78 of PACE if the
statement is not reliable based upon any of the followings:

a. The content of the statement; OR

b. The Source of the information; OR

c. The way or circumstance in which the information was supplied/received; OR

d. The way or circumstance in which the Document was prepared/received

Adduce Hearsay under Common Law Exceptions: S 114 (1) (b)

 Some common law exceptions to adduce Hearsay evidence has been incorporated in S 118,
119 of CJA 2003

 A Hearsay evidence is admissible under S 118 if that is mentioned in a public document

such as maps, public records & registrars, public treaties, birth and death certificate from
local public authority etc.
 A person can adduce evidence of his age, place of birth etc. as hearsay under S 118 as these
information are heard by that person from others

 Hearsay evidence of a person’s reputation of his good character is admissible under S 118
of CJA

 Confession of a D made out of the Court is admissible as hearsay under S 118 of CJA

 Out of the Court statements made between co-accused of common enterprise are admissible
as Hearsay under S 118 of CJA

 An expert can adduce statement of other experts on the field under S 118 of CJA

 If a witness gives inconsistent statement in EIC or XX, then the inconsistent statement
made by that witness outside the Court is admissible as Hearsay under S 119 of CJA 2003

 While conducting cross examination, if a witness is challenged that he has fabricated the
fact, then any consistent statement made by that witness outside the Court on the same
matter is admissible under S 120 (2) and 120 (4) of CJA

Adduce Res Gestae as Hearsay under S 118 of CJA:

 Hearsay statement is admissible under S 118 if that is a res gestae

 A statement is res gestae if:

o The statement was made by a person who was emotionally so overpowered by an

event that the possibility of concoction/distortion can be disregarded because of the
emotional state of the maker of the statement; OR

o The statement was made while the culpable act was committed on the victim and
the culpable act cannot be demonstrated without adducing the statement; OR

o The statement is related to such a sensational physical or mental state of a person

which render the statement reliable

 To adduce a hearsay as res gestae, the Court MUST be satisfied that:

o The mental state of the maker of the statement was overpowered by the culpable
event: AND

o The statement was made at the time when the person was still dominated by the
impact of the culpable event
 If a res gestae is adduced as hearsay the Court MUST direct the jury that the jury must be
satisfied that the person to whom the statement was made was sure about what he heard

o If there is any special fact which may cast doubt on what was said, then the judge
must inform the jury about that

Adduce Hearsay through agreement between all the parties: S 114 (1) (c):
 Hearsay evidence is admissible if all the parties agree to adduce that Hearsay

 Court permission is not required to adduce Hearsay through agreement

Adduce Hearsay for the Interest of Justice: S 114 (1) (d):

 A hearsay evidence is admissible under S 114 (1) (d) if it is in the interest of justice to allow
the hearsay

 To decide whether it is in the interest of Justice, the court looks into the following factors:

i. The value of the Hearsay to determine the issues in dispute

ii. The value of other supporting evidence

iii. The importance of the Hearsay in the Case

iv. The circumstance in which the statement was made

v. The reliability of the maker of the statement

vi. Whether the statement was actually made

vii. Whether there is any oral evidence on that matter and if not then why there is
no oral evidence

viii. The amount and extent of difficulty to challenge the Hearsay

 If the party who wants to adduce a Hearsay fails to take reasonable steps to find the maker
of the statement or to secure his attendance, then S 114 (1) (d) cannot be used to adduce
the Hearsay

Multiple Hearsay:
 Generally multiple Hearsay is not admissible in Criminal proceedings

 Multiple Hearsay is admissible under S 121 of CJA if:

 o Both the Hearsay statements are admissible under S 117, 119 or 120 of CJA; OR

o All the parties agree to adduce the multiple Hearsay; OR

o The Court is satisfied that the multiple Hearsay should be included for the interest
of justice

 Multiple Hearsay CAN NOT be adduced under S 116 or S 118 of CJA 2003

Challenging the Hearsay Evidence:

 A party MAY challenge the credibility of Hearsay statement by adducing contrary evidence
under S 124 of CJA

 The Court can stop a case under S 125 of CJA where the case wholly or substantially
depends on Hearsay evidence and it would be unsafe to convict the D depending upon the
Hearsay

 The Court is empowered by S 126 of CJA to exclude an admissible Hearsay if adducing

the Hearsay is a undue waste of time

o S 126 can be used to exclude both P’s and Defence’s Hearsay evidence (unlike S
78)

Direction to the Jury About Hearsay:

 If a Hearsay is included, the Judge MUST direct the Jury that the statement was made
without taking any oath and that the statement cannot be challenged through Cross-
examination

 The Judge should warn the jury about the risk of relying on the Hearsay

 If the Judge is concerned about the quality of a Hearsay, then he should draw the attention
of the jury about that

Procedure to Adduce Hearsay:

 If a party wants to adduce Hearsay under S 114 (1) (a)-(c), S 118, S 119 or 120, then he
needs to disclose the evidence to all other parties

 If a Party wants to adduce Hearsay under S 114(1) (d), S 116, S 117 (c) or S 121, then he
Must file and serve a Notice to the Court and to all other parties
 The Notice Must contain the followings:

o Identify the Hearsay statement; AND

o Set out the facts which is relied upon to adduce the Hearsay; AND

o Explain how the fact will be proved if it is challenged; AND

o Explain why the Hearsay should be admitted

 If the Notice is served by the P, then it MUST be served:

o If the case is in MC then 28 days after the D plead not guilty

o If the case is in CC then 14 days after the D plead not guilty

 If the Notice is served by the D, then it MUST be served as soon as practicable

Procedure to Challenge a Hearsay:

 If a party wants to challenge a Hearsay evidence, then he MUST make an application to
the Court

o The application MUST be served to all the other parties as well

 The Application MUST be filed and served:

o Within 14 days from the service of the Hearsay Notice; OR

o Within 14 days from the service of the evidence where no Notice of Hearsay is
required; OR

o Within 14 days from when the D plead Not Guilty

Whichever is later

 The Application MUST explain the followings:

o Which fact of the Notice of Hearsay is disputed; AND

o Why the Hearsay should not be included; AND

o Any other objection to the Hearsay evidence