Hearsay Evidence — SQE1 FLK2 Criminal Law and Practice

A woman is stabbed in her kitchen. She tells the first officer at the scene, between gasps, that her husband came at her with a knife. She names him, she describes the knife, and she says she knows she is dying. Two hours later, in hospital, she does. At her husband's murder trial, can the jury be told what she said? Yes. But not as a dying declaration.

That exception does not exist any more. It was left off the preserved list, and everything left off that list was abolished. Her words come in through a different door. This is Hearsay Evidence, the hardest topic in criminal practice, and the one that most rewards a system. Build the system and it stops being frightening. Keep our stabbed woman in mind.

Here is the route. What hearsay actually is, which is narrower than most people think. Then the things that look like hearsay and are not. Then the four doors in, one at a time. Unavailable witnesses. Business documents. The common law rules that survived. And the interests of justice. Then hearsay buried inside hearsay, and last the safety valves the judge keeps back.

Start with the definition, because most marks are lost here. Section 114(1) of CJA 2003 deals with a statement not made in oral evidence in the proceedings. Such a statement is admissible as evidence of any matter stated only if one of four things lets it in.

Two limbs, then. The statement was not made in the witness box. And it is relied on as evidence of a matter stated, which means relied on for its truth. Section 115(2) defines a matter stated as anything stated or referred to that is, or is implied to be, a fact or an opinion about a fact.

Notice what is not in the definition. It says nothing about whether the maker is available. A witness who could easily be called but was not still gives you hearsay. And form is irrelevant. Written, spoken, or a nod of the head in answer to a police officer's question, all of it counts.

So everything turns on purpose. Take one sentence. The victim shouted, run, he's got a knife. Use that to prove the man had a knife, and it is hearsay. Use it to explain why the witness ran, and it is not hearsay at all. Same words. Different job. No gateway needed for the second.

The non-hearsay uses are worth knowing as a list. To prove the statement was made. To show its effect on the listener. To show somebody had notice of something. To explain why a witness behaved as they did. In each, the truth of the words is beside the point.

A woman on trial for handling says she thought the laptop was hers to sell. A friend testifies that he told her the day before that it had been lifted from the office. The prosecution do not care whether that was true. They rely on it only to show what was in her mind. Not hearsay.

Then there is s.115(3), which is where the modern cases live. A communication counts as containing a matter stated only if one purpose of the maker was this. To cause somebody to believe it, or to act on the basis that it is true.

That is R v Twist. Dozens of incoming texts on a dealer's phone asking for the usual, or for a bag at the weekend. Are they hearsay? No. The senders were placing orders. Nobody was asserting this man is a dealer. So the matter the prosecution want to prove was never stated by anyone, and the messages are simply circumstantial evidence of what that phone was being used for.

Machines are the other exclusion. A statement is a representation made by a person. A number plate camera that reads a plate and stamps the time involves no human assertion, so the record is real evidence, not hearsay. What must be proved is that the system was working. Let a human type the data in, and that input is hearsay again.

Right. It is hearsay. Now the four doors, and you check them in this order. A statutory provision makes it admissible. A common law rule preserved by s.118 makes it admissible. All parties agree. Or the court is satisfied it is in the interests of justice.

Door one, and the workhorse, is s.116. Unavailable witnesses. Three requirements. Oral evidence from the maker would have been admissible. The maker is identified to the court's satisfaction. And one of five conditions is met.

The five. The maker is dead. Or unfit to be a witness because of their bodily or mental condition. Or outside the United Kingdom, and it is not reasonably practicable to secure their attendance. Or cannot be found, although such steps as it is reasonably practicable to take have been taken. Or, through fear, does not give oral evidence.

Learn that list closely, because the exam tests its edges. A witness who has moved three hours away, is well, easily found, afraid of nobody, and simply cannot be bothered, is not unavailable. The answer to reluctance is a witness summons, not a hearsay application.

Identification is a precondition, not a detail. An anonymous 999 caller who describes the attacker and rings off has not been identified to the court's satisfaction, so s.116 is shut whatever else is true. You cannot show that reasonable steps would fail to find a person nobody can name.

And outside the United Kingdom does not mean simply abroad. It means abroad and not reasonably practicable to secure attendance. A cooperative witness who has emigrated, has not been asked about a live link and has not been offered expenses, defeats the condition. Nothing was attempted.

Fear is the interesting one. Section 116(3) says fear is to be construed widely, and gives fear of the death or injury of another person, and fear of financial loss, as examples. No threat is needed, and nothing need be traceable to the defendant. The fear need not be reasonable, only genuine.

But fear is also the only ground needing leave. Under s.116(4) the court gives leave only if admission is in the interests of justice. It must have regard to the contents, the risk of unfairness, and whether a special measures direction could be made instead. Screens, a live link, evidence in private. Reading the statement is the last resort.

Door one also holds s.117, business documents. Two basic conditions. The document 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 whoever supplied the information had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

That is all an ordinary business record needs. A haulage firm's delivery log written up each evening for billing. Hospital notes written by the doctor who examined the patient. It does not matter that the maker is alive, well and remembers everything. Availability is not part of the test.

The exception is documents made for proceedings or for a criminal investigation. Those are not shut out, and it is a common error to say they are. Section 117(4) brings in s.117(5), which requires in addition one of the five s.116(2) conditions, or that the supplier cannot reasonably be expected to recall the matters.

So take a shop assistant's witness statement, taken by an officer during an investigation. It can still go in under s.117 if she has since moved abroad and cannot reasonably be brought back. The extra hurdle is cleared by the same five grounds you already know.

Door two. Section 118 preserves a short list of common law rules, and they come in through s.114(1)(b). Res gestae. Public information and public documents. Statements in furtherance of a common enterprise. The basis of an expert's opinion. And admissions and confessions.

Section 118 also has a second subsection, and this is where our stabbed woman comes back. It abolished every common law hearsay rule the section does not list. Dying declarations are not on the list. So her belief that she was dying no longer opens any door at all. It goes to weight, and nothing else.

What lets her words in is s.116. Oral evidence from her would have been admissible, she is identified, and she is dead. That is the first of the five conditions. The dramatic label is gone; the ordinary statutory route does the work.

Res gestae is the preserved rule you will meet most. The test comes from R v Andrews. The statement must be so closely bound up with the event that the possibility of concoction or distortion can be disregarded. The event must still be dominating the maker's mind when she speaks.

So a woman at the bar who shouts, he started it, as the first blows land, is res gestae. A customer who walks home, talks it over with his wife, and telephones the police forty minutes later, speaking calmly, is not. He had time to reflect. That is the whole test.

And note one thing that surprises people. Res gestae does not require the maker to be unavailable. A sobbing 999 call two minutes after an assault, backed by fresh injuries, can be played though the complainant is alive and has simply reconciled. Her availability goes to fairness, not to an absolute bar.

The other preserved rules pay their way too. Entries in public registers, a birth certificate proving age, admissible as evidence of the facts recorded. And a statement by one party to a common criminal enterprise, made in furtherance of it, is evidence against the others.

But confessions cut only one way. An out-of-court confession is admissible against its maker, and nobody else. Take two defendants tried together, where the first has admitted the burglary and blamed the second. The jury must be told the interview is evidence in the first man's case alone.

Door three is the easy one. All parties agree. Where they do, no further test applies: the judge need not find the statement reliable, because the parties know their own cases. He keeps his powers to exclude, but the statement is in.

Door four is the safety net. Section 114(1)(d). The court is satisfied that it is in the interests of justice. This is not automatic admission, and it is not a discretion at large. Section 114(2) gives the court nine factors it must have regard to.

They are worth hearing once. The probative value of the statement, assuming it true. What other evidence there is. How important the matter is. The circumstances in which it was made. How reliable the maker appears, and how reliable the evidence of the making appears. Whether oral evidence can be given, and why not. The difficulty of challenging it, and the prejudice that difficulty causes.

The gateway is wider than people expect. In R v Y, the Court of Appeal held that s.114(1)(d) is available in law for all types of hearsay, and on the application of any party. So a defendant who wants a jury to hear that another man confessed in a pub to the very burglary he is charged with is not shut out.

Door four is also where a defendant's own out-of-court statement usually comes in, and courts are slow to shut out material a defendant wants for his defence. He can hardly complain his own account is unreliable.

Now hearsay inside hearsay. A witness says, Bob told me that Jane saw the defendant running away. Two layers. Bob's statement, and Jane's embedded in it. Section 121 adds a filter on top of the ordinary rules.

Two hurdles, then. Each statement must be admissible in its own right. And s.121 requires in addition one of three things. Either statement admissible under s.117, s.119 or s.120. Or all parties agree. Or the court is satisfied the value of the evidence is so high that the interests of justice require it.

Read that list again, because of what is missing. Section 114(1)(d) is not on it. So the interests of justice gateway cannot by itself carry an embedded statement over the s.121 hurdle. An officer repeating a taxi driver repeating a fare is exactly that trap.

One more provision earns its keep. Section 119. Where a witness admits making a previous inconsistent statement, that statement is evidence of the truth of its contents, not merely material going to credit. A girlfriend turned hostile, who admits signing a statement she now disowns, hands the jury a real choice between the two accounts.

Finally the safety valves, because passing through a door is not the end. Section 78 of PACE 1984 lets the court refuse prosecution evidence where admitting it would so damage the fairness of the proceedings that it ought not to be admitted. Section 126 adds a further power to exclude hearsay.

So take a sole, unsupported statement, given a fortnight late by a man who had been drinking, who twice changed his description of the attacker. He has since died and can never be challenged. That statement may satisfy s.116 and still be kept out.

And s.125 is a duty, not a discretion. Where a Crown Court case is based wholly or partly on hearsay so unconvincing that, given its importance, a conviction would be unsafe, the judge must stop the case.

A word on how SQE1 tests this. You will not be asked to recite section numbers, and you will meet very few case names. You get a scenario and five answers. The section numbers here are scaffolding for your own thinking, and the names are memory pegs.

If you keep only three. Purpose, from R v Twist, because a text ordering drugs states nothing. Concoction, from R v Andrews, because res gestae asks whether the event still dominated the mind. And the five grounds in s.116, because unwilling is not unavailable.

Four traps. One. Availability is no part of the definition of hearsay. A statement is hearsay whether or not its maker could easily have been called, and s.117 business records do not care either.

Two. Do not reach for dying declarations. That exception was abolished. Nor for the label res gestae where the maker had time to reflect, however soon afterwards the words were spoken.

Three. Do not let s.114(1)(d) do work it cannot do. It is not on the s.121 list, so it will not carry an embedded statement over the multiple hearsay hurdle.

Four. Do not stop once a door opens. Section 78 of PACE 1984 and s.126 let the judge exclude admissible hearsay, and s.125 makes him stop the case altogether where the hearsay is central and unconvincing.

Quick check. A man is charged with being concerned in the supply of cocaine. On the phone seized from him on arrest, examiners find several dozen incoming texts sent by different numbers over the previous fortnight. Usual for £40 tonight. Can you sort me a G for the weekend. You about, need two. None of the senders has been traced. The prosecution rely on the messages to show he was dealing.

Are the messages hearsay? Three answers. One: yes, because each is an out-of-court statement relied on to show its contents are true. Two: yes, because none of the senders can be called or cross-examined. Three: no, because the senders were ordering drugs, not causing anyone to believe he was a dealer, so nothing was stated. Pause here if you want a moment.

The answer is three. Under s.115(3) a communication contains a matter stated only if one purpose of the maker was this. To cause another person to believe it, or to act on the basis that it is true. These senders were placing orders. Not one of them was asserting that this man is a dealer. So the matter the prosecution want to prove was never stated by anybody.

Why the others fail. Option one skips the purpose question and reaches straight for the out-of-court label, which is the commonest error in the topic. Option two names a real problem and the wrong one. The inability to cross-examine is why hearsay is regulated, not what makes something hearsay.

Five things to take away. One: hearsay turns on purpose, so ask what the statement is being used to prove before anything else. Two: check the four doors in order, statute, preserved common law, agreement, interests of justice. Three: the five unavailability grounds are a closed list, and the maker must be identified before any of them can be reached.

Four: an ordinary business record needs only the two basic conditions, and the extra hurdle bites only where the document was made for proceedings or an investigation. Five: our stabbed woman is heard, but through s.116, because she is dead, and not because she knew it. Next time, Confession Evidence.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.