#19554 - 17 And 18. Criminal Litigation 2023 2024 Hearsay - BPC Criminal Litigation (formerly BPTC) 2024/2025

• Generally, hearsay is admissible if, and only if, it fails within one of the exceptions from s.114(1) CJ1 2003:

  • A statutory provision;

  • A preserved common law exception;

  • All parties agree to its admission; or

  • It is in the interest of justice to admit it.

• A statement not made in oral evidence in proceedings whose purpose was to cause another person to believe the matter stated, or to cause a person or machine to act on the basis that it is true.

• A statement is any representation of fact or opinion, made by a person, by whatever means (including sketch, photofit or other pictorial form).

• Original evidence is a repetition of a third party’s statement, but not to establish the truth of what was asserted, to establish some other fact:

  • The speaker’s state of mind or the listener's state of mind.

  • To show a statement was made.

• Real evidence is physical, tangible evidence, such as an object, photograph or computer print out. A document will be real evidence and not hearsay where it is admitted in evidence not to prove the truth of its content but rather to prove some other fact.

  • A computer print out or other information will not be hearsay where it is produced automatically by a divide with no manual input.

The witness is unavailable:

• The evidence of an unavailable witness (usually, their witness statement) may be admissible if:

  • The maker of the statement could have given admissible oral evidence; and

  • The maker of the statement can be identified; and

  • The maker of the statement is unavailable due to one of the following:

    • Death;

    • Unfitness to testify due to a physical or mental condition;

    • Being outside the UK and it not being reasonably practicable to secure attendance;

    • Cannot be found despite all reasonably practicable steps being taken; or

    • Fear at giving evidence.

• Note that it is not enough that the witness would simply prefer not to give evidence, their unavailability must be due to one of these reasons.

The statement was made in a business or professional document:

• A business or professional document may be admissible if:

  • Oral evidence of the same matter would be admissible; and

  • The document was:

    • Created or received in the course of a trade, business, profession or other occupation; and

    • The supplier of the information must have had (or reasonably have been supposed to have had) personal knowledge of the facts; and

    • If the information has passed from person to person, each must have done so in the course of his occupation.

• Further, if the document was prepared for a criminal investigation or proceedings, then in addition to the above criteria:

  • The criteria for a witness being unavailable must be fulfilled; or

  • The maker of the statement cannot reasonably be expected to remember its contents.

Previous statements:

• The previous inconsistent statements of a witness who has given oral evidence are admissible as evidence.

• Additionally, the previous statements of a witness are admissible in any of the following circumstances:

  • To rebut the suggestion of fabrication;

  • Where the witness cannot be expected to remember;

  • Where the witness have made a previous complaint;

  • Where the witness has made a previous identification.

Interests of justice:

• In deciding whether to admit the evidence in the interests of justice the following factors should be considered:

  • The probative value of the evidence;

  • Other evidence available;

  • The importance of the evidence to the case;

  • The circumstances in which the statement was made;

  • The reliability of the statement maker;

  • The reliability of the evidence that the statement was made;

  • Whether oral evidence could be given and if not, why;

  • The difficulty of challenging such evidence;

  • The prejudice that the evidence may cause.

• Care must be taken to ensure that provision is not used to circumvent the stricter provisions of the other gateways, but it should not be applied narrowly so as to have no effect.

• There are eight common law exceptions preserved:

  • Public information;

  • Reputation as to character;

  • Reputation or family tradition;

  • Res Gestae:

    • Where the maker was so emotionally overpowered that the possibility of the matter being concocted is impossible. The test is:

      • Can concoction be disregarded; and

      • Was there an unusual or startling or dramatic event and if so:

        • Did the event dominate the thoughts of the maker; and

        • Was the statement an indicative reaction to the event?’ and

        • Was the statement made approximately contemporaneously?

      • The hearsay statement was accompanied by an act which can be evaluated as evidence only if accompanied by the statement;

      • The statement relates to an intention or emotion - not a physical state.

  • Confessions;

  • Confessions by agents;

  • Common enterprise;

  • Expert evidence.

• Multiple hearsay = e.g A repeating what B repeated from C.

• Multiple hearsay is not admissible unless:

  • Either of the hearsay is admissible for being a business document, inconsistent statement or other previous statement; or

  • All parties agree; or

  • It is necessary in the interests of justice.

• A party must serve notice on the court officer and every other party if it wishes to introduce hearsay.

• If it fails to do so:

  • The evidence will not be admissible without the court’s permission.

  • If leave is given to admit the evidence, adverse inferences may be drawn.

  • There may be costs consequences.

• The notice must:

  • Identify the hearsay;

  • Set out the facts relied on;

  • Explain how the facts will be proved;

  • Explain why the evidence is admissible;

  • Have attached any unserved document or statement which contains the hearsay.

• The notice should be introduced by P not more...