The Law of Evidence Fact Sheets - Hearsay

HEARSAY - INTRODUCTION

This fact sheet describes the complicated area of the law of evidence relating
to hearsay, in criminal cases.

DEFINITIONS

Hearsay evidence has been given many definitions as it has been interpreted
and reinterpreted by the courts. A useful starting point is the definition found
in the Civil Evidence Act 1995 section 1, which, although it applies to hearsay
in civil cases, is a clear definition of hearsay based on common law cases,
which form the basis of how hearsay evidence is treated in criminal cases;

“Hearsay evidence can be thought of as:- any statement made otherwise

than by a person while giving oral evidence in the proceedings, which is
tendered as evidence of the matters stated.”

For the purposes of the hearsay rules, “statement” applies equally to those
made orally, to those made by a gesture (e.g., nodding of a head) and those
in documents.

Examples of hearsay statements in documents can be found in witness

statements read out by solicitors etc. in court; public analyst certificates, and
records from businesses, e.g., temperature monitoring records.

Case law has set out guidelines as to when a statement is or isn’t hearsay,
and often lengthy legal argument takes place to determine the exact status of
the statement (the evidence) in order to determine its admissibility.

Some examples of statements held not to be hearsay include those repeated

by others to show only that a statement in question was actually made
(Subramanium v PP) or that somebody in question can speak, for example.

Statements that have been held to be hearsay include documents from a

factory, assembly line (Myers v DPP); somebody nodding in agreement to a
question (where their throat had been cut); and phone calls to a drug dealer’s
house asking for the usual supply of drugs. The cases have shown that
statements do not have to be blatant examples but could be statements that
on the face of it are not repeated to prove the facts stated, but on reflection
imply that the facts suggested are true. However, even the cases dealing with
these so-called “implied assertions” are unclear and often conflicting. The
message is; if a statement is made about something someone else did, or
said etc., there will probably be an argument in court as to whether that
statement is hearsay!

THE GENERAL RULE

The general rule at common law is that hearsay evidence is inadmissible

unless it falls within a common law or statutory exception.

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 The Law of Evidence Fact Sheets - Hearsay

The reasoning behind this exclusionary rule is that out of court statements
made by others cannot be tested in court by cross-examination to see if they
are true or not, and that the court has not got an opportunity to see the
witness consider his/her demeanour etc.

THE COMMON LAW EXCEPTIONS

Informal admissions : e.g., those made by a party to the proceedings on a

previous occasion. This area of common law has now been covered by the
law regarding confessions (s.76 Police and Criminal Evidence Act 1984).

Statements made in public documents: e.g., documents concerning a

public matter and made by a public officer under a duty to inquire into, and
record results of the inquiry, such as a Register of Births and Deaths, or an
Office of Fair Trading return etc.

Works of reference: e.g., maps, historical texts, etc.

Statements made by certain deceased people: e.g., those made by

someone against their interest, and those made by someone during their
course of duty, e.g., a policeman and dying declarations (but only where the
statement is complete, and not just “It was Bob that ........”).

Res Gestae statements: These are statements made in the heat of the
moment, where it is assumed the person making them has not had time to
concoct an untrue statement. Statements of someone’s intention to do
something may also be admissible evidence that they did actually do that
thing, although the authorities on this question conflict.

Statements made by mechanical devices: e.g., where there has been no

human intervention or input, such as with automatic calculations and printouts
made by breathalysers etc.

STATUTORY EXCEPTIONS

Criminal Justice Act 1988 (CJA) ss. 23 and 24

Section 23 - First Hand Documentary Statements - This section provides

that a statement made by a person in a document shall be admissible in
criminal proceedings as evidence of any fact stated of which oral evidence
would be admissible, but only where the maker of the statement is unable to
attend court (i.e., if they are dead, or outside the UK, or unfit to give
evidence, or can’t be found) or where they are not giving evidence out of
fear. (This may be an employee who is not giving evidence out of fear of
losing his/her job).

The statement must be “first-hand hearsay”, i.e., a statement made by a

person who directly perceived the facts of which the evidence is being given.

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 The Law of Evidence Fact Sheets - Hearsay

Where a statement satisfies the above, there is another hurdle for

admissibility, which is the court’s ability to refuse its admittance where it is in
the interests of justice to do so (s.25(1)). In deciding whether it is in the
interests of justice to refuse a statement’s admittance, the court may consider
the risk of unfairness to the accused by either admitting it or not, and whether
he/she is likely to be able to contradict it.

Similarly, where the statement was prepared for the purpose of a criminal
investigation, or for criminal proceedings (e.g., a S.9 witness statement taken
by us during an accident investigation etc.) the statement is only admissible if
the court decides that it is in the interests of justice to admit it (s.26).

The effect of these sections is that where first hand hearsay statements are
made in documents, and the maker is unable to give oral evidence, the
statement will be admitted unless it is not in the interests of justice to do so,
but if the statement was made during a criminal investigation etc. it will not be
admitted unless it is in the interests of justice to do so.

Section 24 - Business Documents - This section provides for documents

prepared in the course of a business, profession or occupation to be
admissible, despite them being hearsay statements.

Under this section, statements in documents will be admissible as evidence of

any fact of which direct oral evidence would be admissible if the document
was created or received in the course of a trade, business, profession or
other occupation, or by a person holding an office and where the information
was supplied by a person who had personal knowledge of the matters dealt
with.

Once a business document falls within s.24, it is generally admissible without

the need to show that the witness is unavailable to attend court etc. However,
if the document was prepared for a criminal investigation etc., then the
document will not be admissible unless the witness who made the document
(who had personal knowledge of the facts stated) is unable to attend court, or
can’t be expected to remember the matters stated (e.g., where they are of a
routine nature).

Sections 25 and 26 also apply to business documents, and so the

presumption is that a S.24 statement would be admitted unless it was not in
the interests of justice to do so, but if it was prepared in the course of a
criminal investigation etc. it would not be admitted unless it was in the
interests of justice to do so.

Examples of S.24 statements could include receipts, delivery notes or

statements to the police etc. It should also be noted that a “document” can
include a tape, film, disc etc. as well as a written document.

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CJA 1988 s.30 - Expert Reports

The provisions of ss. 23-26 above do not apply to expert reports, i.e., those
written by a person dealing with matters on which they are or were qualified to
give expert evidence.

As a special exception to the hearsay rule, an expert report can be admitted in

evidence without the expert who made the report giving oral evidence,
provided that the court gives leave for this to happen.

The decision to give leave will turn on the contents of the report; the reasons
why the expert cannot give evidence; the risk of unfairness to the accused
from his/her inability to cross-examine the expert etc.

The rules for crown court cases state that expert reports should be disclosed
to the other side as soon as practicable after committal of the accused, and
recent changes to the rules regarding prior disclosure may also affect the
likelihood of a court giving leave to admit an expert report where disclosure
rules have not been complied with.

Computer Records

Admissibility - A computer record will be hearsay if it is stating information

fed in by a human (e.g., a word processed document). However, it could be a
“business record” within the meaning of section 24 CJA 1988 (above) and be
admissible (subject to ss. 25 and 26).

A computer record will not be hearsay if it is of a computer made calculation.

Such a document is real evidence.

Police and Criminal Evidence Act 1984 (PACE) S.69

This section provides that computer records may only be admissible (whether
they are hearsay or not) where there are no reasonable grounds for believing
that the statement is inaccurate because the computer has not been used
correctly, and that the computer was operating properly.

The effect of S.69 is that any party wishing to rely on computer evidence (e.g.,
by oral evidence of an operator, or by a certificate showing reliability of the
computer signed by a responsible person), must prove that the computer was
working and being used properly.

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REFERENCES

Criminal Justice Act 1988

Myers v Director of Public Prosecutions (1965) AC 1001, HL

Police and Criminal Evidence Act 1984

Subramanium v Public Prosecutor (1956) 1 WLR 965

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