27.2 Hearsay, Confessions, Bad Character and Exclusion

Hearsay: definition, grounds, and challenging admissibility

Under the Criminal Justice Act 2003, hearsay is a statement not made in oral evidence in the proceedings that is relied on as evidence of a matter stated. A matter stated is one that the maker appears to have intended another person to believe, or to have intended a machine to operate on as if the matter were as stated. A scream of pain, or a CCTV image with no human statement, is usually not hearsay. A handwritten note "I saw D stab V" tendered to prove that D stabbed V is hearsay.

Hearsay is inadmissible unless a gateway in section 114(1) applies:

1. a statutory provision makes it admissible (the workhorses are section 116 unavailability and section 117 business and other documents);
2. a common-law rule preserved by section 118 applies (res gestae, public information, reputation, confessions, common enterprise, and certain expert bases);
3. the parties agree; or
4. the court is satisfied that it is in the interests of justice (section 114(1)(d), applying the section 114(2) checklist: probative value, other evidence on the point, importance, circumstances of making, reliability of the maker, reliability of the evidence of making, whether oral evidence can be given and why not, difficulty of challenging the statement, and prejudice).

Section 116 requires that the maker is identified and that oral evidence of the matter would have been admissible. The unavailability reasons are: death; unfitness through bodily or mental condition; being outside the United Kingdom with attendance not reasonably practicable; not being found despite reasonably practicable steps; or not giving (or not continuing) oral evidence through fear, with the court's leave and an interests-of-justice assessment. Fear is not a free pass. The court looks at what can be done to enable the witness to testify, including special measures.

Section 117 covers documents created or received in the course of a trade, business, profession, occupation, or office, where the supplier had (or may reasonably be supposed to have had) personal knowledge, and each person in the chain received the information in the course of a business. A police incident log can qualify; a friend's WhatsApp speculation usually cannot.

Challenging hearsay admissibility

From September 2026 the FLK expressly tests challenging hearsay, not only reciting gateways. Defence and prosecution tools include:

• attacking the gateway itself (the witness is not unavailable; the document is not a business document; section 114(1)(d) should not be used to avoid calling a reluctant but available witness);
• section 78 of PACE, because hearsay is still prosecution evidence to which fairness applies;
• section 126 of the 2003 Act, a hearsay-specific discretion to exclude where the case would be unduly lengthened or the value of the evidence is substantially outweighed;
• section 125, a duty to stop the case if the hearsay is so unconvincing that a conviction would be unsafe;
• section 124, allowing the absent maker's credibility to be attacked as if the person had testified.

Article 6 fair-trial arguments travel with these statutory tools. The question is whether the trial as a whole is fair, including whether the hearsay is decisive, what supporting evidence exists, and what counterbalancing measures were used.

Confession evidence: definition, admissibility, and section 76 of PACE

A confession is defined in section 82(1) of PACE as any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise. A nod, a signed record of interview, or "I was there but I didn't throw the punch" can all be confessions so far as they are adverse. The statement need not be made to a police officer.

Section 76(1) makes a confession admissible against its maker so far as it is relevant and is not excluded. The distinctive challenge — and the one the September 2026 specification keeps under the confession heading — is section 76(2).

If it is represented that the confession was or may have been obtained by oppression, or in consequence of anything said or done which was likely, in the circumstances, to render unreliable any confession that might be made in consequence, the court shall not allow it unless the prosecution proves beyond reasonable doubt that it was not obtained in that way. The court must exclude even if the confession may be true. Oppression includes torture, inhuman or degrading treatment, and the use or threat of violence. Unreliability is wider: inducements, denials of legal advice, or questioning a vulnerable suspect without an appropriate adult can all found a section 76(2)(b) argument.

The issue is tried on the voir dire. The defendant can give evidence on the voir dire without being exposed to the indictment at that stage in the same way as at trial. If the confession is excluded, section 76(4) still lets the prosecution prove facts discovered as a result, and so much of the confession as is needed to show that the defendant speaks, writes, or expresses themselves in a particular way.

Do not treat section 78 as the confession-only challenge. Section 76 is mandatory once oppression or unreliability is not disproved. Section 78 is a later, general fairness filter. A confession obtained after a significant and substantial Code C breach may survive section 76 (because it is not unreliable or oppressive) and still be excluded under section 78 because admitting it would make the trial unfair. The reverse is also true: section 76 can exclude a confession that would otherwise look attractive as a matter of discretion. Keep the two provisions in sequence, not as synonyms.

Bad character evidence

Bad character is evidence of, or of a disposition towards, misconduct other than evidence which has to do with the alleged facts of the offence or is evidence of misconduct in connection with the investigation or prosecution of that offence (section 98 of the Criminal Justice Act 2003). Misconduct means the commission of an offence or other reprehensible behaviour (section 112). Previous convictions are the usual example, but uncharged reprehensible behaviour can count. Evidence that is "to do with" the present offence — for example, how the defendant behaved during this robbery — is not bad character and does not need a gateway.

Seven gateways: defendant's bad character, section 101(1)

Defendant bad character is admissible if, but only if, one of these gateways is open:

Section 103 fleshes out gateway (d). Propensity to commit offences of the kind charged may be shown by offences of the same description or the same category. A single previous conviction can suffice if it is distinctive; a pattern is more common. Propensity to be untruthful is not established merely because the defendant denies the offence. R v Hanson asks whether the history establishes a propensity, whether that propensity makes guilt more likely, and whether it is unjust to rely on the convictions.

Three gateways: non-defendant bad character, section 100(1)

Evidence of a person other than the defendant's bad character is admissible only if:

Leave of the court is required for (a) and (b). This is a tighter filter than section 101. A defendant who wants to put a complainant's previous convictions before the jury must meet the substantial-probative-value test, not a mere relevance test.

Court's powers to exclude bad character

There is no separate FLK heading for a ritual "procedure for admitting" bad character. What the court does is apply the gateway and then, where the statute requires it, decide exclusion. Section 101(3) is the central power: the court must not admit evidence through gateway (d) or (g) if admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. The court must have particular regard to how old the misconduct is. Section 103(3) stops the court treating same-description or same-category offences as proof of propensity where that would be unjust. Section 107 requires the court to stop the case if admitted bad character evidence is contaminated so that a conviction would be unsafe. Section 78 of PACE remains available for prosecution bad-character evidence that has arrived through other gateways. Co-defendant evidence through gateway (e) is not prosecution evidence, so section 78 does not bite in the same way. Notice under the Criminal Procedure Rules is the practical vehicle for these arguments; it is not a free-standing topic.

Exclusion under section 78 of PACE and the right to a fair trial

Section 78 is a discretionary power. The court may refuse to allow evidence on which the prosecution proposes to rely if, having regard to all the circumstances, including how the evidence was obtained, admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. It is not confined to confessions. Identification obtained in breach of Code D, hearsay that survives a gateway, covert recordings, and bad character on gateways other than (d) and (g) are all familiar section 78 territory.

Fairness is the fairness of the proceedings, not a free-standing punishment of the police. Illegally or improperly obtained evidence is not automatically excluded in England and Wales. The court asks whether the trial can still be fair, including Article 6 ECHR. A significant and substantial PACE breach, especially one that goes to the reliability of what was obtained or to the defendant's opportunity to obtain legal advice, is much more likely to lead to exclusion than a technical defect that did not affect the evidence. Section 78 does not allow the court to exclude defence evidence. Where both section 76 and section 78 are in play on a confession, deal with the mandatory test first, then fairness.