6.2 Hearsay Safeguards, Multiple Hearsay & Procedure

6.2 Hearsay Safeguards, Multiple Hearsay & Procedure

The Criminal Justice Act 2003 replaced a rigid exclusionary rule with a gateway-plus-safeguards structure. Candidates who stop at the gateways answer only half the question. Every hearsay SBA has a second stage: even if it gets in, what protects the defendant?

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1. The safeguard architecture

Multiple hearsay: s.121

A statement is multiple hearsay where the information has passed through more than one out-of-court link — A tells B, B writes it down, and the note is tendered to prove what A said happened. Section 121(1) provides that such a statement is not admissible to prove the fact that an earlier hearsay statement was made unless:

• (a) either statement is admissible under s.117 (business documents), s.119 (previous inconsistent statements) or s.120 (other previous statements of a witness); or
• (b) all parties agree; or
• (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

Note what is not in the list: s.116 and s.114(1)(d). A statement from an unavailable witness recounting what a third party told them will not get through s.121(a). The only routes are agreement or the demanding interests-of-justice test in s.121(1)(c).

Credibility of the absent declarant: s.124

Where hearsay is admitted and the maker does not give oral evidence, s.124 puts the opposing party in roughly the position they would have been in on cross-examination:

• Any evidence admissible as relevant to the declarant's credibility may be adduced;
• With the court's leave, evidence may be adduced of any matter which could have been put to the declarant in cross-examination as relevant to credibility but which would otherwise be inadmissible — this expressly displaces the finality rule on collateral matters;
• Evidence of a previous inconsistent statement by the declarant may be adduced to show they contradicted themselves;
• If the party who tendered the hearsay then adduces evidence to rebut an allegation, the court may allow further evidence in response.

Section 124 is the practical answer to "the witness cannot be cross-examined": their convictions for dishonesty, their inconsistent earlier accounts and their motive to lie can all go before the jury.

Stopping the case: s.125

Where, on a trial on indictment, the case against the defendant is based wholly or partly on a hearsay statement, and the evidence 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. Note the ingredients: the duty arises at any time after the close of the prosecution case, it is mandatory once the test is met, and it is a lower threshold than Galbraith because it focuses on the reliability of the hearsay rather than on whether a jury could convict.

Discretionary exclusion: s.126

The court may refuse to admit a hearsay statement if satisfied that "the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it". Section 126(2) preserves the common law discretion and s.78 PACE, which remains the principal tool where the hearsay is central and the defendant has no realistic means of challenging it.

Fair trial. The Strasbourg "sole or decisive" objection was addressed in Al-Khawaja and Tahery v UK and Horncastle: a conviction may rest on hearsay that is sole or decisive provided there are sufficient counterbalancing factors — the statutory safeguards, careful judicial scrutiny of the reasons for absence, s.124 material and a proper direction.

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2. Procedure: CrimPR Part 20

Notice is required where a party wants to introduce hearsay under s.114(1)(d) (interests of justice), s.116 (unavailable witness), s.117(1)(c) (documents prepared for criminal proceedings) or s.121 (multiple hearsay). Nothing needs to be served for res gestae or a confession, which is a favourite trap.

The notice must identify the evidence, set out the facts relied on to make it admissible, explain how those facts will be proved if disputed, and identify the statutory basis.

Failure to give notice is not fatal. The court may dispense with the requirement, allow notice in a different form, or extend the time limit, even after it has expired. But s.132(5) CJA 2003 provides that a failure to comply may be taken into account in exercising the s.78 discretion, and, if the evidence is admitted, in considering any question of costs.

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Exam traps in this section

• s.121 does not list s.116 or s.114(1)(d) — multiple hearsay from an unavailable witness needs agreement or the interests-of-justice route in s.121(1)(c).
• s.124 overrides the collateral finality rule with leave.
• s.125 is mandatory, applies on indictment, and is triggered by unconvincing hearsay, not merely thin hearsay.
• No notice is needed for res gestae or confessions.
• Prosecution notice: 20 business days in the magistrates' court, 10 in the Crown Court.