CLP - Hearsay

Question 1

What is hearsay?

Answer 1

A statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated

Question 2

When is an out-of-court statement hearsay?

Answer 2

When it is used to prove that what it says is true, not just to show that it was said.

Question 3

What are the two key questions to ask when tackling hearsay?

Answer 3

(1) Is it hearsay? (2) Does an exception apply?

Question 4

Why is hearsay often excluded at trial?

Answer 4

Because it cannot be tested by cross-examination, making it unreliable and potentially unfair.

Question 5

Under what condition is hearsay more likely to be excluded due to unfairness?

Answer 5

When it is the sole or decisive evidence against the accused.

Question 6

What is the general rule on hearsay admissibility?

Answer 6

It is inadmissible unless an exception applies.

Question 7

What is the rule against hearsay?

Answer 7

A statement made out of court cannot be used to prove the truth of its contents.

Question 8

What is the prima facie position if a statement is hearsay?

Answer 8

It is inadmissible, unless it fits within a statutory or common law exception.

Question 9

What does CJA 2003 s114(1)(d) allow?

Answer 9

Admitting hearsay evidence in the interests of justice, replacing some older common law exceptions.

Question 10

Which human rights provision is relevant to hearsay?

Answer 10

Article 6 ECHR – right to a fair trial.

Question 11

What general conditions must be met for hearsay evidence to be admitted under the CJA 2003?

Answer 11

There must be a sufficient reason for the absence of the witness
The statutory framework for admitting hearsay must be followed
The court must be satisfied that a fair trial will still be possible

Question 12

What 3 fairness factors must the court consider when hearsay is critical to the prosecution case?

Answer 12

Whether there is a good reason to admit the hearsay (under CJA 2003)
Whether the hearsay is reliable
Whether counterbalancing measures (e.g. jury directions) are in place to ensure fairness

Question 13

When is hearsay evidence admissible under s114(1) CJA 2003?

Answer 13

Only if it falls within one of these four categories:

(a) A statutory provision (in this Chapter or elsewhere) allows it
(b) A preserved common law rule under s118 allows it
(c) All parties agree to it being admitted
(d) The court decides it is in the interests of justice to admit it

Question 14

Which section of CJA 2003 sets out the general admissibility rule for hearsay?

Answer 14

Section 114(1) CJA 2003

Question 15

How is “statement” defined in s115 CJA 2003?

Answer 15

Any representation of fact or opinion made by a person, by any means — including in writing, sketches, photos, or other pictorial forms.

Question 16

When is something a “matter stated” under s115(3) CJA 2003?

Answer 16

If one of the purposes of the statement was to:

(a) Cause someone else to believe the matter, or
(b) Cause someone to act on it as true

Question 17

What are the three steps from R v Twist to decide if a statement is hearsay?

Answer 17

What fact (matter) is the evidence being used to prove?
Is that matter contained in the communication?
If no → not hearsay
Was it a purpose of the maker that someone believe or act on that matter as true?
If yes → it is hearsay
If no → not hearsay

Question 18

According to R v Twist, when is a statement not hearsay?

Answer 18

If the statement wasn’t intended to cause someone to believe or act on it as true, even if it contains the matter being proved.

Question 19

Why is a private diary not hearsay?

Answer 19

Because the writer did not intend anyone else to believe what was written — no “matter stated” under s115(3).

Question 20

Why is CCTV footage not hearsay?

Answer 20

Because it is not “made by a person” (s115(2)) — it’s machine-generated evidence with no human declarant.

Question 21

Are questions hearsay?

Answer 21

No — if they contain no statement of fact (e.g. “Where’s the stuff?”), they are not “matters stated”.

Question 22

Why is evidence used to show the effect of words not hearsay?

Answer 22

Because it’s admitted to show the effect on the listener, not the truth of the words spoken.

Question 23

Why are legally significant words not hearsay?

Answer 23

Because the fact the words were spoken is part of the legal issue itself (e.g. offer of sexual services = evidence of a brothel).

Question 24

Why are falsehoods not hearsay?

Answer 24

Because they are not being adduced as true. E.g. false alibi is evidence of the defendant’s intent to mislead.

Question 25

What is original evidence?

Answer 25

A relevant statement adduced for some reason other than to prove that the statement is true

Question 26

When is a threat not hearsay?

Answer 26

If admitted to show the threat was made, not that the person intended to carry it out.

Question 27

How can original evidence be used to show state of mind?

Answer 27

If the statement helps show the mental state of the person making it — e.g. distressed 999 call = evidence of fear or emotion.

Question 28

What was shown in Ratten v R [1972] about original evidence?

Answer 28

A 999 call made shortly before death was admitted to show the caller’s distress, not to prove the contents of the call — so it was original evidence, not hearsay.

Question 29

What 3 things must be satisfied before hearsay can be admitted under s116(1)?

Answer 29

The statement would have been admissible if made in oral evidence The declarant (relevant person) is identified to the court’s satisfaction One of the five conditions in s116(2) is met

Question 30

What are the five conditions in s116(2) for witness unavailability?

Answer 30

(a) Dead (b) Unfit due to bodily/mental condition (c) Outside UK and attendance not reasonably practicable (d) Cannot be found despite reasonable steps (e) Fear (with court leave)

Question 31

What does “unfit to be a witness” under s116(2)(b) mean?

Answer 31

The person cannot give evidence due to a bodily or mental condition, even if they can attend court (e.g. trauma from sexual assault).

Question 32

When is it “not reasonably practicable” to secure a witness’s attendance under s116(2)(c)?

Answer 32

When the cost or effort of securing attendance is not proportionate to the importance of their evidence — includes video link options.

Question 33

What does the court consider under s116(2)(d) when a witness “cannot be found”?

Answer 33

Whether reasonable steps were taken to find the witness. Practicality, effort, and proportionality are assessed.

Question 34

What standard of fear is needed under s116(2)(e)?

Answer 34

Fear must be shown to the criminal standard, but does not need to come from the defendant. A causal link between fear and silence is required.

Question 35

When can a statement be admitted under s116(2)(e) (fear)?

Answer 35

Only if the court gives leave, considering: (a) Statement’s contents (b) Fairness to parties (c) Use of protective measures (e.g. YJCEA s19) (d) Any other relevant factors

Question 36

What principle comes from Shabir [2012] on fearful witnesses?

Answer 36

The court must make every effort to get the witness to attend to test fear. Fear must be properly established before admitting hearsay.

Question 37

Why must police avoid giving incentives based on fear in s116(2)(e) cases?

Answer 37

If a witness is told their statement will be used if they stay away, they have an incentive to claim fear — court won't find that genuine.

Question 38

When is a statement in a document admissible under s117(1) CJA 2003?

Answer 38

If: (a) Oral evidence of the matter would be admissible; and (b) The conditions in s117(2) are satisfied

Question 39

What is the condition in s117(2)(a) for business documents?

Answer 39

The document was created or received by someone in the course of a trade, business, profession, occupation, or office (paid or unpaid).

Question 40

What does s117(2)(b) require about the supplier of the information?

Answer 40

They must have personal knowledge (or be reasonably supposed to have) of the matters dealt with.

Question 41

What does s117(2)(c) require about people passing on the information?

Answer 41

Each person in the chain (if any) must have passed on the information in the course of a trade, profession, or office.

Question 42

Can the same person fulfil both s117(2)(a) and s117(2)(b) roles?

Answer 42

✅ Yes — they may be the same person (s117(3)).

Question 43

Does s117 only apply to literal “business” documents?

Answer 43

No — the definition is broad. It includes: Medical records Police reports written in the course of duty

Question 44

What conditions apply under s117(4)–(5) for documents prepared for criminal proceedings?

Answer 44

If a document was prepared for pending or contemplated criminal proceedings (e.g. police notebooks, witness statements), it is only admissible if: One of the s116(2) unavailability conditions is satisfied, or The original maker cannot reasonably be expected to recall the matters (e.g. due to the passage of time)

Question 45

What power do s117(6)–(7) give the court?

Answer 45

Power to exclude business documents even if they meet s117, if the court doubts the reliability of the statement.

Question 46

What are 4 factors under s117(7) to assess reliability?

Answer 46

(a) Contents of the statement (b) Source of the information (c) How/where the info was received (d) How/where the document was created

Question 47

How does s78 PACE relate to hearsay?

Answer 47

It allows the court to exclude prosecution evidence (including hearsay) if its admission would be unfair.

Question 48

What does s114(1)(d) allow?

Answer 48

Allows hearsay if the court is satisfied it is in the interests of justice to admit it.

Question 49

What are 3 key factors in s114(2) for deciding “interests of justice”?

Answer 49

Probative value of the statement Availability of other evidence Reliability of the statement and maker (Also includes difficulty in challenging it, context, how/why it was made, etc.)

Question 50

why is hearsay usually inadmissible

Answer 50

not made on oath no opportunity to see the maker's demeanour

Question 51

Can reluctance to testify due to trauma qualify under s114(1)(d)?

Answer 51

❌ No — in R v X, the court held that this did not justify using s114(1)(d) where s116 conditions weren't met.