6.1 Hearsay Evidence & The Four Gateways

6.1 Hearsay Evidence & The Four Gateways

The law of evidence in criminal proceedings in England and Wales underwent a fundamental statutory overhaul with the enactment of Chapter 2 of Part 11 of the Criminal Justice Act 2003 (CJA 2003). Prior to the CJA 2003, the common law rule against hearsay was notoriously rigid, complex, and laden with technical exceptions. The 2003 Act replaced the common law rule with a comprehensive statutory framework designed to balance the admissibility of reliable out-of-court statements with robust procedural safeguards for the accused. This section provides an authoritative analysis of the statutory definition of hearsay, the preliminary tests for identifying hearsay, the four statutory gateways to admissibility, the specific gateways governing unavailable witnesses and business documents, preserved common law rules, the discretionary safety valve, and mandatory statutory trial safeguards.

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1. The Statutory Definition & The Preliminary Tests

The statutory rule against hearsay is set out in Section 114(1) CJA 2003, which provides that a statement not made in oral evidence in the proceedings is inadmissible as evidence of any matter stated, unless it satisfies one of the statutory exceptions. To determine whether an item of evidence constitutes hearsay, practitioners and judges must apply the statutory definitions in Section 115 CJA 2003 alongside the leading authority R v Twist [2011] EWCA Crim 1143.

Core Statutory Definitions (s.115 CJA 2003):

• Statement (s.115(2)): Any representation of fact or opinion made by a person by whatever means, including representation made in a sketch, photo-fit, or sign language.
• Matter Stated (s.115(3)): A matter stated is a matter to which the statement relates if (and only if) the purpose, or one of the purposes, of the person making the statement appears to have been:
  1. To cause another person to believe the matter; or
  2. To cause another person to act or a machine to operate on the basis that the matter is as stated.

The Three-Stage Twist Test:

In R v Twist, the Court of Appeal established a structured three-stage test to establish whether evidence constitutes hearsay:

1. Identify the relevant matter sought to be proved by the party tendering the evidence.
2. Ask whether there is a statement of that matter in the communication or document.
3. Determine whether it was one of the purposes of the maker of the statement to cause another person to believe that matter, or to cause another person to act or machine to operate on the basis that the matter is as stated.

If the maker did not have that purpose, the statement is not hearsay; it is original evidence (e.g., text messages sent to a phone ordering drugs tendered not to prove the truth of the request, but as circumstantial evidence that the phone was being used for drug dealing).

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2. The Four Statutory Admissibility Gateways (s.114(1) CJA 2003)

Under Section 114(1) CJA 2003, an out-of-court statement falling within the definition of hearsay is inadmissible unless it comes within one of the four statutory gateways:

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3. Section 116 CJA 2003: Cases Where a Witness is Unavailable

Section 116 CJA 2003 allows a written or recorded statement made by a person to be admitted as evidence of any matter stated if the person who made the statement is identified, would be competent as a witness, and is unavailable to give oral evidence due to one of five specific statutory grounds.

Preliminary Conditions (s.116(1)):

1. Oral evidence given in the proceedings by the maker of the statement would be admissible as evidence of that matter; and
2. The maker of the statement is identified to the satisfaction of the court; and
3. Any of the five statutory grounds in Section 116(2) is satisfied.

The Five Statutory Grounds (s.116(2)(a)–(e)):

• s.116(2)(a) Dead: The relevant person is dead.
• s.116(2)(b) Unfit: The relevant person is unfit to be a witness because of his bodily or mental condition (supported by clear medical evidence).
• s.116(2)(c) Outside the UK: The relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance (the party tendering must show reasonable efforts were made, such as offering video links or travel expenses).
• s.116(2)(d) Cannot be Found: The relevant person cannot be found although such steps as it is reasonably practicable to take have been taken to find him (requires detailed evidence of diligent police enquiries).
• s.116(2)(e) Fear: Through fear the relevant person does not give oral evidence (or does not continue giving evidence), and the court gives leave to admit the statement.

Special Requirements for Fear (s.116(2)(e) & s.116(4)):

Under s.116(2)(e), "fear" is construed broadly to include fear of death or injury to another person, or financial loss. However, leave can only be granted if the court is satisfied that admitting the statement is in the interests of justice, taking into account statutory factors in s.116(4):

• The statement's contents;
• Any risk that its admission or exclusion will result in unfairness to any party (especially whether cross-examination is impossible);
• Whether special measures under the Youth Justice and Criminal Evidence Act 1999 could be used to enable the witness to testify;
• Any other relevant circumstances.

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4. Section 117 CJA 2003: Business and Other Documents

Section 117 CJA 2003 creates a statutory exception for statements contained in documents created or received by a person in the course of a trade, business, profession, occupation, or office.

General Conditions for Admissibility (s.117(2)):

1. 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
2. The person who supplied the information contained in the statement had (or may reasonably be supposed to have had) personal knowledge of the matters dealt with; and
3. Each person through whom the information was supplied received it in the course of a trade, business, profession, occupation, or office.

Additional Requirement for Documents Prepared for Criminal Proceedings (s.117(5)):

Where a business document was created in contemplation of or for the purposes of pending or contemplated criminal proceedings or a criminal investigation (e.g., a witness statement taken by a police officer or a forensic laboratory report prepared for trial), the statement is not admissible under s.117 unless:

• One of the s.116(2) unavailability grounds applies to the person who supplied the information; OR
• The person who supplied the information cannot reasonably be expected to have any recollection of the matters dealt with (s.117(5)(b)).

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5. Section 118 & Section 114(1)(d): Preserved Common Law & The Safety Valve

Preserved Common Law Exceptions (s.118 CJA 2003):

Section 118 expressly preserves several historic common law exceptions to hearsay, including:

• Res Gestae: Statements made by a person so spontaneously reactant to an overpowering event that the mind was dominated by the event, excluding the possibility of fabrication or distortion (R v Andrews [1987] AC 281).
• Confessions & Admissions: Confession evidence made by an accused (governed by s.76 PACE 1984).
• Common Enterprise / Conspiracy: Statements made by a co-conspirator in furtherance of a shared unlawful enterprise.
• Public Information & Records: Published works, public registers, and official records.

Section 114(1)(d) Interests of Justice ("Safety Valve"):

Section 114(1)(d) allows the court to admit hearsay evidence that does not fit into any other gateway, provided admission is in the interests of justice. In applying s.114(1)(d), the court must have regard to the nine statutory factors set out in Section 114(2):

1. The probative value of the statement to a matter in issue;
2. What other evidence can be given on the matter;
3. The importance of the matter in the context of the case as a whole;
4. The circumstances in which the statement was made;
5. The reliability of the maker of the statement;
6. The reliability of the evidence of the making of the statement;
7. Whether oral evidence can be given, and if not, why;
8. The amount of difficulty involved in challenging the statement;
9. The extent of prejudice caused to the party facing the statement.

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6. Statutory Safeguards Against Hearsay Evidence

Because hearsay evidence deprives the opposing party of the opportunity to cross-examine the declarant in real time, the CJA 2003 establishes three vital statutory safeguards:

• Section 124 CJA 2003 (Credibility of Declarant): Where a hearsay statement is admitted, the opposing party may adduce evidence to attack the credibility of the out-of-court declarant. This includes evidence of the declarant's bad character, prior inconsistent statements, bias, or motive to lie, in the same manner as if the declarant had testified in person.
• Section 125 CJA 2003 (Duty to Stop Trial): If at the close of the prosecution case the judge is satisfied that the case against the defendant is based wholly or partly on a hearsay statement, and the statement is so unconvincing that, considering its importance to the case, a conviction would be unsafe, the judge must either direct an acquittal or discharge the jury.
• Section 126 CJA 2003 (Discretion to Exclude Redundant Hearsay): The court may refuse to admit a hearsay statement if satisfied that the value of the evidence is substantially outweighed by the risk that admitting it would result in undue waste of time.