758:), but it did change the evidential effect of such statements once admitted. Formerly, such statements were not evidence of the facts stated in them (unless the witness agreed with them in court): they only proved that the witness had kept his story straight or had changed his story, and so were only evidence of his credibility (or lack of it) as a witness. They were not hearsay. Under the 2003 Act, however, such statements are now themselves evidence of any facts stated in them, not just of credibility, and so are now hearsay.
741:
example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial. Previous criminal records can be adduced (if otherwise admissible) under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge.
480:
will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of parts of the existing law of hearsay susceptible of similar treatment, ... The only satisfactory solution is by legislation following on a wide survey of the whole field ... A policy of make do and mend is not appropriate.
545:
possible that the person making the original statement was lying, joking, or exaggerating. It is also possible that the witness testifying at trial misunderstood the original statement. The court has no way to assess these possibilities, except via the testimony of the witness reporting the hearsay.
701:
In the case of absence through fear, additional safeguards are imposed prior to the statement's admission. The court must be satisfied it is in the interests of justice, particularly considering the statements contents, whether special measures (screens in court, or video live-link) would assist, and
544:
A statement reported in hearsay is not generally subject to these safeguards. The person making the original statement was not testifying under oath, and was not subject to cross-examination. Even assuming that the witness reporting the original statement does so completely truthfully, it remains
753:
of a witness, the witness may be questioned about statements he previously made outside court on an earlier occasion, to demonstrate either that he has been consistent or inconsistent in his account of events. The Act did not change the circumstances in which such statements could become admissible
655:
defines hearsay as statements "not made in oral evidence in the proceedings" being used "as evidence of any matter stated". If the statements are being used for purposes other than serving "as evidence of any matter stated", they are not covered by the definition of hearsay in the 2003 Act. It also
740:
If the business information was produced in the course of a domestic criminal investigation, then either one of the above five categories (for absent witnesses) must apply, or the person producing the statement cannot be expected now to have any recollection of the original information. A typical
479:
If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision
736:
To be admissible, the evidence referred to in the document must itself be admissible. The person supplying the information must have had personal knowledge of it (or be reasonably supposed to have had), and everyone else through whom the information was supplied must have also been acting in the
725:(2004), in the Court of Appeal, it was said this rule would permit of some exceptions, otherwise it would provide a licence to intimidate witnesses - though neither should it be treated as a licence for prosecutors to prevent testing of their case. Each application had to be weighed carefully.
907:(1986) the House of Lords held in a murder case that highly self-incriminating remarks made by a third party, not at the trial, could not be admitted in evidence (the remarks mentioning the murder of a boy whose body had not yet been independently discovered).
603:("the 1995 Act") and is now primarily upon a statutory footing. The Act arose from a report of the Law Commission published in 1993 which criticised the previous reforming statutes' excessive caution and cumbersome procedures. Section 1 of the Act says
541:. In adducing direct evidence (that is, recollection of a witness in court) the court considers how the witness would have perceived the event at the time, potential ambiguities, and the witness's sincerity. These can be tested in cross-examination.
895:
an
American airman was accused of indecently assaulting a girl just under the age of four. Evidence that the four-year-old victim (who did not give evidence herself) had told her mother "it was a coloured boy" was held not to be admissible (not being
552:
the hearsay rule operates in two ways: (a) it forbids using the credit of an absent declarant as the basis of an inference, and (b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such and such
614:
Other provisions of the 1995 Act preserve common law rules relating to public documents, published works of a public nature and public records. The common law in respect of good and bad character, reputation or family tradition is also preserved.
680:
To be admissible, the evidence must be otherwise admissible, and the maker of the statement identified to the court's satisfaction. Additionally, the absent person making the original statement must fall within one of following categories:
470:
inhibited much reasoned progress of the law, whose progress (in the form of judicial capacity to reform it) ended not long afterwards. Later attempts to reform through the common law it got little further, with Lord Reid in
910:
Under the 2003 Act, any hearsay evidence whether or not covered by another provision may be admitted by the court if it is "in the interests of justice" to do so. This provision is sometimes known as the "safety valve".
705:
A party to the proceedings (that is, either the prosecution or defence) who causes any of the above five conditions to occur to stop a witness giving evidence, cannot then adduce the hearsay evidence of it.
437:
defines hearsay evidence as a statement not made in oral evidence in criminal proceedings and admissible as evidence of any matter stated but only if certain conditions are met, specifically where:
132:
548:
Although the hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence:
462:
The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in
557:
The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has led to misunderstandings about the nature of hearsay.
565:
618:
The Act moves some of the focus of hearsay evidence to weight, rather than admissibility, setting out considerations in assessing the evidence (set out in summary form):
569:
733:
Documents created in the course of a trade, occupation, profession or public office (referred to as "business") can be used as evidence of the facts stated therein.
717:, it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine breached Article 6 of the
611:
This includes hearsay of multiple degree (that is, hearsay evidence of hearsay evidence: for example "Jack told me that Jill told him that she went up the hill").
560:
A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the
510:("2003 Act"), which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the
918:
How much probative value (that is, use in determining the case) the statement has (assuming it to be true), or its value in understanding other evidence;
454:
The meaning of "statements" and "matter stated" is explained in section 115 of the 2003 Act. "Oral evidence" is defined in section 134(1) of that Act.
857:
a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.
1339:
914:
The Act sets out criteria in determining whether the interests of justice test are met, and provides for consideration of other relevant factors:
709:
The scope of this rule has been considered in cases when much of the prosecution case involves evidence by a witness who is absent from court. In
1220:
1195:
1159:
1119:
1095:
409:
831:
the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
584:
Hearsay is generally admissible in civil proceedings. This is one area in which
English law differs dramatically from American law; under the
1243:
529:
The reasoning behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. Direct evidence is given under
1026:
718:
561:
521:
carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act.
834:
the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
495:
The Law
Commission and Supreme Court committee provided a number of reports on hearsay reform, prior to the Civil Evidence Acts
791:
evidence relating to a person's age or date or place of birth may be given by a person without personal knowledge of the matter
492:
made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid and Lord
Diplock.
714:
634:
Whether the original statement was an edited account, or was made in collaboration with another, or for a particular purpose
485:
593:
317:
282:
185:
755:
664:
The general rule clearly states that hearsay will not be used in court proceedings as it is not generally admissible.
854:
an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
779:
published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps)
809:
402:
292:
805:- evidence of reputation or family tradition is admissible to prove or disprove (and only so far as it does so):
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585:
518:
507:
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423:
195:
84:
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Whether the circumstances of the hearsay evidence suggest an attempt to prevent proper evaluation of its weight
322:
785:(such as public registers, and returns made under public authority with respect to matters of public interest)
600:
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496:
430:
relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.
865:- a statement made by a party to a common enterprise is admissible against another party to the enterprise
137:
99:
79:
1136:
395:
248:
152:
122:
117:
489:
258:
799:- evidence of a person's reputation is admissible for the purpose of proving his good or bad character
514:
in 'Evidence in
Criminal Proceedings: Hearsay and Related Topics]'(LC245), published on 19 June 1997.
1410:
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74:
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54:
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parties in the proceedings. No such provision existed before the coming into force of the 2003 Act.
238:
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if the testimony is subsequently proven false), in the presence of the court and jury, and may be
1215:
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374:
223:
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142:
1390:
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There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In
788:
records (such as the records of certain courts, treaties, Crown grants, pardons and commissions)
837:
the statement relates to a physical sensation or a mental state (such as intention or emotion).
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Whether the original statement was made at or near the same time as the evidence it mentions
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Outside the United
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A witness's testimony may be read in court if the witness is unavailable to attend.
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Reasonableness of the party calling the evidence to have produced the original maker
607:
In civil proceedings evidence shall not be excluded on the ground that it is hearsay
383:
369:
1016:
Report of the
Committee on Supreme Court practice and procedure, Cmnd 8878 (1953)
599:
The law concerning hearsay in civil proceedings was reformed substantially by the
596:
is inadmissible in both criminal and civil trials barring a recognised exception.
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Cannot be found, and reasonably practicable steps to find them have been taken
588:, used in U.S. federal courts and followed practically verbatim in almost all
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any unfairness to the defendant in not being able to challenge the evidence.
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does not cover statements that are not representations of a fact or opinion.
631:
Whether any person involved had any motive to conceal or misrepresent matters
1238:(2 ed.). Oxford and Portland, Oregon: Hart Publishing. Paragraph 3.14.
1109:
1027:"Criminal Law - Evidence in Criminal Proceedings Hearsay and Related Topics"
845:- all rules relating to the admissibility of confessions or mixed statements
808:
pedigree or the existence of a marriage (or civil partnership following the
750:
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359:
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The extent to which that difficulty would prejudice the party facing it.
534:
267:
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17:
769:
preserved the following common law rules and abolished the remainder:
441:
It is in the interests of justice to admit it (see section 114(1)(d))
1007:
13th Report of the Law Reform
Committee Cmnd 2964 (1966), para 11
530:
364:
484:
There was some statutory reform in the nineteenth century (see
34:
688:
Unfit to be a witness because of bodily or mental condition
933:
How reliable the evidence in the statement appears to be;
936:
Whether oral evidence can be given and, if not, why not;
930:
How reliable the maker of the statement appears to be;
921:
What other relevant evidence has been or can be given;
1276:(2003) 26 E.H.R.R. 46, European Court of Human Rights
939:
The difficulty involved in challenging the statement;
924:
Its importance in the context of the case as a whole;
879:Hearsay evidence is permitted by agreement between
450:The evidence is multiple hearsay (see section 121)
900:either) against the defendant, who was white.
754:in evidence (which are still prescribed in the
745:Previous consistent and inconsistent statements
605:
550:
477:
447:The evidence is in a document (see section 117)
927:Circumstances in which the statement was made;
628:Whether the evidence involves multiple hearsay
403:
8:
1211:"Criminal Justice Act 2003: Section 114"
815:the existence of any public or general right
466:. The technical nature of the discussion in
444:The witness cannot attend (see section 116)
410:
396:
22:
776:as evidence of the facts stated therein:
1236:Hearsay evidence in criminal proceedings
1186:"Civil Evidence Act 1995: Section 4"
1150:"Civil Evidence Act 1995: Section 7"
1086:"Civil Evidence Act 1995: Section 1"
697:Afraid to testify or continue to testify
1257:
1255:
982:
980:
951:
533:(with potential criminal liability for
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266:
203:
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107:
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1360:Criminal Justice Act 2003, s.114(1)(d)
1322:Criminal Justice Act 2003, s.114(1)c)
1133:The Hearsay Rule in Civil proceedings
782:
7:
721:(right to a fair trial). However in
1371:Criminal Justice Act 2003, s.114(2)
818:the identity of any person or thing
570:sixth amendment of its Constitution
562:European Convention on Human Rights
1285:6 Archbold News 2, Court of Appeal
1137:Hearsay Rules in Civil Proceedings
14:
1295:Criminal Justice Act 2003, s.117
828:- statements are admissible if:
572:(its principles tracing back to
568:) and, in the United States the
486:Bankers' Books Evidence Act 1879
1312:, 169 J.P. 441, Court of Appeal
1299:Criminal Justice Act 1988, s.24
1262:Criminal Justice Act 2003, s116
762:Preserved common law exceptions
1266:Criminal Justice Act 1988, s23
1135:(LC216), Cm 2321 (1993) - see
803:Reputation or family tradition
715:European Court of Human Rights
422:The hearsay provisions of the
1:
851:as evidence of facts stated:
318:Declaration against interest
186:Self-authenticating document
1389:Criminal Justice Act 2003:
767:Section 118 of the 2003 Act
756:Criminal Procedure Act 1865
1432:
1223:, 2003 c. 44 (s. 114)
970:(1876) 1 PD 154; see also
849:Admissions by agents etc.
810:Civil Partnership Act 2004
797:Reputation as to character
15:
1234:Spencer, John R. (2014).
1110:"Civil Evidence Act 1995"
968:Sugden v Lord St Leonards
653:Criminal Justice Act 2003
586:Federal Rules of Evidence
566:articles 6(1) and 6(3)(d)
525:Reasoning behind the rule
519:Criminal Justice Act 1988
508:Criminal Justice Act 2003
435:Criminal Justice Act 2003
424:Criminal Justice Act 2003
196:Hague Evidence Convention
85:Eyewitness identification
1338: (4 December 1963),
1198:, 1995 c. 38 (s. 4)
1162:, 1995 c. 38 (s. 7)
1098:, 1995 c. 38 (s. 1)
958:(1837) 7 Ad & El 313
323:Present sense impression
133:Public policy exclusions
1385:Civil Evidence Act 1995
601:Civil Evidence Act 1995
1336:[1963] UKPC 16
609:
555:
482:
100:Consciousness of guilt
1221:The National Archives
1196:The National Archives
1160:The National Archives
1120:The National Archives
1096:The National Archives
749:Sometimes during the
673:Unavailable witnesses
464:Wright v Doe d Tatham
249:Recorded recollection
887:Interests of justice
737:course of business.
668:Statutory exceptions
647:Statutory definition
642:Criminal proceedings
283:in United States law
16:For other uses, see
458:History of the rule
433:Section 114 of the
123:Laying a foundation
1297:, formerly in the
1264:, formerly in the
1216:legislation.gov.uk
1191:legislation.gov.uk
1155:legislation.gov.uk
1115:legislation.gov.uk
1091:legislation.gov.uk
998:1 WLR 1286 at 1291
774:Public information
729:Business documents
379:trusts and estates
259:Dead Man's Statute
224:Direct examination
181:Best evidence rule
1245:978-1-84946-463-5
863:Common enterprise
580:Civil proceedings
490:Evidence Act 1938
488:), and later the
420:
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340:Implied assertion
303:Dying declaration
298:Excited utterance
244:Proffer agreement
229:Cross-examination
42:Types of evidence
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153:Similar fact
33:Part of the
1411:English law
1066:Crim LR 721
843:Confessions
473:Myers v DPP
288:Confessions
239:Impeachment
128:Materiality
75:Inculpatory
70:Exculpatory
55:Documentary
1405:Categories
1395:as amended
1391:as enacted
1075:2 St Tr 15
1037:2024-07-15
947:References
898:res gestae
893:Sparks v R
825:Res gestae
723:R v Arnold
719:Convention
428:common law
350:common law
329:Res gestae
214:Competence
138:Spoliation
1064:R v Olisa
875:Agreement
751:testimony
219:Privilege
205:Witnesses
143:Character
109:Relevance
50:Testimony
1050:Thayer,
370:Property
360:Contract
234:Redirect
27:Evidence
1416:Hearsay
974:, below
594:hearsay
535:perjury
475:saying
268:Hearsay
65:Digital
18:Hearsay
1242:
1175:s.7(3)
1054:, 1907
1033:. 3.40
590:states
348:Other
37:series
1350:AC 41
1334:
375:Wills
352:areas
148:Habit
1240:ISBN
1173:ibid
685:Dead
651:The
531:oath
506:The
501:1972
499:and
497:1968
365:Tort
95:Lies
903:In
881:all
576:).
35:law
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1200:—
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