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Hearsay Definition, Test And Exceptions Notes

BPTC Law Notes > Criminal Evidence Notes

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A more recent version of these Hearsay Definition, Test And Exceptions notes – written by City Law School students – is available here.

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& EXCEPTIONS Definition: Statement not made in oral evidence being admitted as evidence of (the truth of) the matters stated. "Statement" - rule: must be made by a person.


Where statement made by a machine performing a mechanical function (eg. typewriter) - hearsay as essentially person's statement.


Where statement made otherwise than by a person, but depends for its accuracy on information supplied by a person, it is not admissible unless it can be proven that the information (data entered) is accurate (first).

Films and photographs are not hearsay (as not made by a person) But it is hearsay if made by a person using a tool (eg. drawings, photofit images, gestures) Test

1. Identify evidence party wishes to adduce

2. Was the statement made in oral evidence in proceedings?

3. What matter does the party calling it say it proves?


If relevant to Defendant's state of mind - Original evidence (includes all future statements)

4. Is this expressly stated in the statement?

5. Was the purpose of the statement-maker to cause another person to believe the matters stated (or machine to operate on basis that it is true)?
s114 CJA 2003 (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if (a) any provision or statutory exception makes it admissible, (b) any (common-law) rule preserved by s118 makes it admissible, (c) all parties agree to it being admissible, or (d) court is satisfied it is in the interests of justice for it to be admissible ("safety-valve") s116 - Where Witness is Unavailable (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if---
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, (b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are---
(a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. "Reasonably Practicable" R v Castillo - Must consider a number of factors, including:

* Importance of the evidence,

* How prejudicial to Defendant if Witness does not attend,

* Reasons for non-attendance, and

* Expense and inconvenience of bringing Witness to court "Fear" (s116(2)(e))

* "Fear" wide enough to cover Witness's fear as a result of a mistaken belief in a threat


Balancing exercise between unfairness to Defendant as the evidence could not be challenged, and unfairness to Prosecution as it could not put before the jury all available evidence.

(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard---
(a) to the statement's contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), (c) in appropriate cases, to the fact that a direction under s19 Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and (d) to any other relevant circumstances. Restriction (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused---
(a) by the person in support of whose case it is sought to give the statement in evidence, or (b) by a person acting on his behalf,

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