Hearsay in English law


The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.
Section 114 of the Criminal Justice Act 2003 defines hearsay evidence as a statement not made in oral evidence in criminal proceedings and admissible as evidence of any matter stated but only if certain conditions are met, specifically where:
The meaning of "statements" and "matter stated" is explained in section 115 of the 2003 Act. "Oral evidence" is defined in section 134 of that Act.

History of the rule

The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in Wright v Doe d Tatham. The technical nature of the discussion in Doe d Tatham inhibited much reasoned progress of the law, whose progress ended not long afterwards. Later attempts to reform through the common law it got little further, with Lord Reid in Myers v DPP saying
There was some statutory reform in the nineteenth century, and later the Evidence Act 1938 made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid and Lord Diplock.
The Law Commission and Supreme Court committee provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972.
The Criminal Justice Act 2003, which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing the report by the Law Commission in , published on 19 June 1997.
Previously, the Criminal Justice Act 1988 carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act.

Reasoning behind the rule

The reasoning behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. Direct evidence is given under oath, in the presence of the court and jury, and may be cross-examined. In adducing direct evidence the court considers how the witness would have perceived the event at the time, potential ambiguities, and the witness's sincerity. These can be tested in cross-examination.
A statement reported in hearsay is not generally subject to these safeguards. The person making the original statement was not testifying under oath, and was not subject to cross-examination. Even assuming that the witness reporting the original statement does so completely truthfully, it remains possible that the person making the original statement was lying, joking, or exaggerating. It is also possible that the witness testifying at trial misunderstood the original statement. The court has no way to assess these possibilities, except via the testimony of the witness reporting the hearsay.
Although the hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence:
The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has led to misunderstandings about the nature of hearsay.
A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the European Convention on Human Rights and 6 and, in the United States the sixth amendment of its Constitution.

Civil proceedings

Hearsay is generally admissible in civil proceedings. This is one area in which English law differs dramatically from American law; under the Federal Rules of Evidence, used in U.S. federal courts and followed practically verbatim in almost all states, hearsay is inadmissible in both criminal and civil trials barring a recognised exception.
The law concerning hearsay in civil proceedings was reformed substantially by the Civil Evidence Act 1995 and is now primarily upon a statutory footing. The Act arose from a report of the Law Commission published in 1993 which criticised the previous reforming statutes' excessive caution and cumbersome procedures. Section 1 of the Act says
This includes hearsay of multiple degree.
Other provisions of the 1995 Act preserve common law rules relating to [|public documents], published works of a public nature and public records. The common law in respect of good and bad character, reputation or family tradition is also preserved.
The Act moves some of the focus of hearsay evidence to weight, rather than admissibility, setting out considerations in assessing the evidence :

Statutory definition

The Criminal Justice Act 2003 defines hearsay as statements "not made in oral evidence in the proceedings" being used "as evidence of any matter stated".

General rule

The general rule clearly states that an hearsay will not be used in court proceedings as it is not generally admissible.

Statutory exceptions

Unavailable witnesses

A witness's testimony may be read in court if the witness is unavailable to attend.
To be admissible, the evidence must be otherwise admissible, and the maker of the statement identified to the court's satisfaction. Additionally, the absent person making the original statement must fall within one of five categories—they are:
Unfit to be a witness because of bodily or mental condition Outside the United Kingdom and it is not reasonably practicable to secure their attendance
In the case of absence through fear, additional safeguards are imposed prior to the statement's admission. The court must be satisfied it is in the interests of justice, particularly considering the statements contents, whether special measures would assist, and any unfairness to the defendant in not being able to challenge the evidence.
A party to the proceedings who causes any of the above five conditions to occur to stop a witness giving evidence, cannot then adduce the hearsay evidence of it.
The scope of this rule has been considered in cases when much of the prosecution case involves evidence by a witness who is absent from court. In Luca v Italy, in the European Court of Human Rights, it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine breached Article 6 of the Convention. However in R v Arnold, in the Court of Appeal, it was said this rule would permit of some exceptions, otherwise it would provide a licence to intimidate witnesses - though neither should it be treated as a licence for prosecutors to prevent testing of their case. Each application had to be weighed carefully.

Business documents

Documents created in the course of a trade, occupation, profession or public office can be used as evidence of the facts stated therein.
To be admissible, the evidence referred to in the document must itself be admissible. The person supplying the information must have had personal knowledge of it, and everyone else through whom the information was supplied must have also been acting in the course of business.
If the business information was produced in the course of a domestic criminal investigation, then either one of the above five categories must apply, or the person producing the statement cannot be expected now to have any recollection of the original information. A typical example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial. Previous criminal records can be adduced under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge.

Previous consistent and inconsistent statements

Sometimes during the testimony of a witness, the witness may be questioned about statements he previously made outside court on an earlier occasion, to demonstrate either that he has been consistent or inconsistent in his account of events. The Act did not change the circumstances in which such statements could become admissible in evidence, but it did change the evidential effect of such statements once admitted. Formerly, such statements were not evidence of the facts stated in them : they only proved that the witness had kept his story straight or had changed his story, and so were only evidence of his credibility as a witness. They were not hearsay. Under the 2003 Act, however, such statements are now themselves evidence of any facts stated in them, not just of credibility, and so are now hearsay.

Preserved common law exceptions

preserved the following common law rules and abolished the remainder:
Hearsay evidence is permitted by agreement between all parties in the proceedings. No such provision existed before the coming into force of the 2003 Act.

Interests of justice

There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In Sparks v R an American airman was accused of indecently assaulting a girl just under the age of four. Evidence that the four-year-old victim had told her mother "it was a coloured boy" was held not to be admissible against the defendant, who was white.
In R v Blastland the House of Lords held in a murder case that highly self-incriminating remarks made by a third party, not at the trial, could not be admitted in evidence.
Under the 2003 Act, any hearsay evidence whether or not covered by another provision may be admitted by the court if it is "in the interests of justice" to do so. This provision is sometimes known as the "safety valve".
The Act sets out criteria in determining whether the interests of justice test are met, and provides for consideration of other relevant factors: