Hearsay

Updated 28/03/08

• Introduction
• The legislation
  • Definition of hearsay evidence
  • Statutory categories of admissibility
  • Cases where a witness is unavailable
  • Cases involving business and other documents (replacing section 24 Criminal Justice Act 1988)
  • Common Law categories of admissibility
  • Inconsistent and other previous statements of witnesses
  • Multiple Hearsay
  • Documents produced as exhibits
  • Capability to make a statement
  • Credibility
  • Stopping the case where evidence is unconvincing
  • General discretion to exclude evidence
  • Expert evidence: preparatory work
  • Confessions
  • Representations other than by a person
  • Depositions
  • Evidence at retrial
• Rules of Court
• Proof of statements in documents
• Practical considerations

Introduction

The Criminal Justice Act 2003 codifies the law on the admissibility of hearsay evidence and abolishes previous common law rules and statutory provisions.

The changes have followed considerable criticism of the operation of the existing law. In 1997 the Law Commission conducted a full consultation exercise and thereafter produced a report and draft Bill (Law Commission report No 245 Evidence in Criminal Proceedings: Hearsay and related topics). This area of law was also considered by Sir Robin Auld as part of his Review. Sir Robin Auld concluded that we should move away from the strict rule against the admission of hearsay evidence in criminal proceedings, to a more flexible position where we admit such evidence and instead trust fact-finders to assess the weight of the evidence. The Government's White Paper "Justice for All" promoted more inclusionary rules of evidence with the comment "Justice is not served if important information is excluded for no good reason." The new approach is consequently to make it easier to present evidence, including hearsay, to the jury.

The Government has generally adopted the Law Commission recommendations and the provisions in the Criminal Justice Act 2003 are generally consistent with the draft bill that was produced in 1997.

The general principle in relation to criminal proceedings is that prosecution and defence witnesses should give oral evidence and be available for cross-examination. The Law Commission accepted that this was a fundamental part of the trial system.

Article 6(3)(d) of the European Convention on Human Rights states that a person charged with a criminal offence has a right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him". This right is one of the factors to be taken into account when considering whether or not there has been a fair trial. One of the purposes of Article 6(3)(d) is to put the accused person on an equal footing with the prosecution.

The new hearsay provisions apply equally to the defence as to the prosecution with the added safeguard for the defendant that any matters requiring proof must be proved to the criminal standard by the prosecution and on a balance of probabilities by the defence.

Exceptions to the rule against hearsay have been developed at common law and by statute. As long ago as 1965 the House of Lords (DPP v Myers [1965] AC 1001) suggested that there was no proper principle being followed and that future developments to exceptions to the hearsay rules should be left to legislation. The former legislation is contained in (Part 2 (Sections 23 to 28) Criminal Justice Act 1988) and relates to the admissibility of statements made by unavailable witnesses

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The legislation

The hearsay provisions are to be found in Chapter 2 of Part 11 Criminal Justice Act 2003 (the 2003 Act).

The provisions come into force on 4th April 2005. The provisions apply to all criminal proceedings begun on or after this date.

The Court of Appeal in (R v Bradley [2005] EWCA Crim 20) ruled that "criminal proceedings" in section 141 of the Criminal Justice Act 2003 (the 2003 Act) has the same meaning as "criminal proceedings" in sections 112(1), 134(1) and 140, namely "criminal proceedings in relation to which the strict rules of evidence apply". The effect of this is that "criminal proceedings" mean a stage in the proceedings and the hearsay provisions apply to the stages of criminal proceedings where the strict rules of evidence apply. Therefore the provisions apply to all trials and Newton hearings begun on or after the 4th April 2005.

The decision in (R v Bradley) was in relation to bad character evidence but exactly the same principles apply to hearsay.

The effect of the decision in (R v Bradley) is that any hearsay evidence introduced in a trial or Newton hearing starting on or after 4th April 2005 must be introduced in accordance with the 2003 Act.

The issue of preparatory hearings was not addressed in (R v Bradley). Section 8 Criminal Justice Act 1987 and section 30 Criminal Procedure and Investigation Act 1996 state that the trial starts with the preparatory hearing. Nevertheless, the Court of Appeal in (R v H [2006] 1 Cr App R. 4) decided that the new hearsay provisions apply to preparatory hearing cases in the same way as any other i.e to any trial where the evidence is heard which begins after 4th April 2005.

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Definition of hearsay evidence

The 2003 Act provides that a statement not made in oral evidence in the proceedings is admissible in evidence of any matter stated only in circumstances provided for by the 2003 Act - Section 114

A 'statement' is defined as any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photo fit or other pictorial form. A 'matter stated' is one where the purpose or one of the purposes of the person making the statement appears to have been to cause another person to believe the matter or to cause another person to act or a machine to operate on the basis that the matter is as stated - Section 115.

The effect of this definition is to enable evidence to be admitted of 'implied assertions'. This reverses the decision made in (R v Kearley (1992) 2AC 228). Kearley was the case where police officers had been at the home of the defendant and whilst there had answered telephone calls and personal calls from people asking about drugs that the defendant had for sale. The callers were not called as witnesses. The prosecution wished to adduce the evidence to prove that the intended recipient of the calls was a dealer in drugs. The House of Lords decided that, as evidence of the fact that the defendant dealt in drugs, the caller's words were hearsay and thus inadmissible. It now follows that the callers' words would not fall within the definition of being a 'matter stated' because the purpose of the call was not to cause another person to believe that the recipient of the call was a drug dealer but simply to request drugs.

The onus will be on a party to prove that the statement was not intended to cause another to believe the matter if the statement is not to be treated as hearsay. The burden on the prosecution will be beyond reasonable doubt and the burden on the defence the balance of probabilities.

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Statutory categories of admissibility

Hearsay evidence (as defined above) is admissible in criminal proceedings only if-

• The 2003 Act or any other statutory provision makes it admissible - Section 114(1)(a)
• Any rule of law preserved by section 118 makes it admissible (see below) - Section 114(1)(b)
• All parties to the proceedings agree to it being admissible Section 114(1); or

The court is satisfied that it is in the interests of justice for it to be admissible - Section 114(1)(d)

In exercising the discretion under Section 114(1)(d) the court must have regard to the following (and any others it considers relevant)-

• How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case,
• What other evidence has been, or can be, given on the matter or evidence mentioned above,
• How important the matter or evidence mentioned is in the context of the case as a whole,
• The circumstances in which the statement was made,
• How reliable the maker of the statement appears to be,
• How reliable the evidence of the making of the statement appears to be,
• Whether oral evidence of the matter stated can be given and, if not, why it cannot,
• The amount of difficulty involved in challenging the statement,
• The extent to which that difficulty would be likely to prejudice the party facing it.

Section 114(1)(d) will be considered only in cases where admissibility under the other statutory provisions and the retained common law rules is not allowed.

Section 114(1)(d) follows a recommendation in the Law Commission report that there should be a "safety valve" to enable a court to admit evidence not otherwise allowed by the rules but which could have a significant impact. The examples before the Law Commission all related to evidence which would have assisted a defendant. There was concern that some evidence, which would have assisted a defendant, could not have been made admissible under the existing rules. However, Section 114(1)(d) has been given a prominent place in the Act. Even though one of the intentions behind the reform of the law was to create certainty and reduce the time spent in court arguing admissibility based on discretion, the court is specifically given a wide discretion to admit hearsay, and this is one of the main gateways to admissibility. Whilst it is presently envisaged that the provision will be used rarely, it may be that more and more hearsay evidence will be admitted and put before the arbiters of fact where the issue will be what weight to attach to the evidence. This approach is in line with the Government's proposals in its "Justice for All" white paper.

The test for admissibility is "interests of justice". The guidelines for the factors to consider in relation to the interests of justice test are detailed. Prosecutors will need to take these factors into account when considering the likely admissibility of evidence that the prosecution propose to call. These will also be the factors to take account of when receiving a notice of intention to adduce hearsay evidence from the defence. The prosecutor will need to decide whether to oppose any notice or agree to admit the evidence.

The courts have already indicated a willingness to use Section 114(1)(d). For example in (R v Xhabri [2006] 1 Cr App R. 26) the Court of Appeal, when considering an application to admit the previous complaint of a rape victim under Section 120 (see below) stated that even if the previous complaint fell outside the strict construction of Section 120 they would admit the evidence under Section 114(1)(d).

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Cases where a witness is unavailable

Section 116 of the Act effectively replaces section 23 Criminal Justice Act 1988. The main differences are -

• The statement may now be oral
• In the case of fear, the statement need not have been made to a person in authority
• In relation to unfitness, the unfitness is in relation to being a witness as opposed to attending as a witness.

The 2003 Act also covers the situation where a witness does give evidence, but through fear does not cover the relevant matter that is contained in a statement.

The 2003 Act introduces automatic admissibility of a statement made by an identifiable person of evidence that would be admissible if that person were available to give oral evidence but are unable to do so because either

• The person is dead Section 116(2)(a)
• The person is unfit to be a witness because of their bodily or mental condition Section 116(2)(b)
• The person is outside the United Kingdom and it is not reasonably practicable to secure his attendance Section 116(2)
• The person cannot be found although such steps as it is reasonably practicable to take to find him have been taken Section 116(2)(d)

There is a limited form of admissibility if the reason for non-availability to give oral evidence is through fear. Section 116(2)(e)

In cases where the witness does not give oral evidence through fear (or does not continue to give such evidence), leave of the court is required.

The 2003 Act guides the court on the exercise of this discretion by requiring the court to consider that the statement ought to be admitted in the interests of justice, having regard -

• To the statement's contents Section 116(4)(a)
• 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) Section 116(4)(b)
• In appropriate cases, to the fact that special measures under the Youth Justice and Criminal Evidence Act 1999 could be made Section 116(4)
• Any other relevant circumstances. Section 116(4)(d)

The person making the statement must be identified to the court's satisfaction - Section 116(1)(b). Thus the statement of an unidentified passer by cannot be introduced under this section. (See below for res gestae provisions, which may assist in these circumstances and also consider Section 114(1)(d)

The 2003 Act gives 'fear' a wide definition and it will include fear of the death or injury of another person or of financial loss. Section 116(3).

Any person who by himself or his agent causes the unavailability of the witness cannot rely on the provisions of the 2003 Act to produce that person's statement Section 116(5).

Although Schedule 2 of the 1988 Act is repealed, it remains possible to challenge the credibility of a witness whose statement is received in evidence. Section 124

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Cases involving business and other documents (replacing section 24 Criminal Justice Act 1988)

The 2003 Act rules in relation to the admissibility of business and other documents are very similar to the rules in Section 24 Criminal Justice Act 1988 Section 117.

The Act deals differently with statements contained in general business documents and statements made in contemplation of criminal proceedings.

Generally a statement contained in a document is admissible of any matter stated if -

• Oral evidence would be admissible as evidence of the matter
• The document or the part containing the statement 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
• The person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
• Each person (if any) through whom the information was supplied from the relevant person to the person creating or receiving the information also received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office Section 117(2).

Documents admissible under these provisions will be wide ranging and include company correspondence, hospital records and a note made by an operator working for a paging company that messages have been left for a customer (as in (Rock [1994] Crim LR 843)).

In the case of statements prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation (other than a request under section 7 of the Crime (International Co-operation) Act 2003 (some overseas evidence, for example evidence obtained pursuant to a letter of request) then one of the five conditions in Section 116(2) must also be satisfied (see above) or the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances) Section 117(5)

Documents where these additional requirements must be met will include statements of fraud investigators and police officer's notes. However, it may be that the information upon which the fraud investigator bases his statement will be admissible as much of that information may be contained in business documents admissible under Section 117(2).

The anomaly in Section 24 Criminal Justice Act 1988 whereby it was the person who recorded the statement who needs to be unavailable or have no recollection is addressed and it is now the case that the person supplying the information is now the relevant person. Section 117(2)(b). The problem identified in the drafting of the 1988 Act in (R v Deroda [2000] 1Cr App R 41) is consequently resolved and the decision in (Bedi [1992] 95 Cr App R 21) where it was accepted that reports of the loss or theft of credit cards compiled by a bank employee from information supplied by the owners of the cards were 'made' by the employee rather than by the owners of the cards is reversed. It is now clear that the maker of the statement is the owner of the cards.

Although admissibility is generally automatic, there is limited discretion given to the court to exclude evidence if satisfied that the statement's reliability is doubtful in view of

• its contents
• The source of the information contained in it
• The way in which or the circumstances in which the information was supplied or received, or
• The way in which or the circumstances in which the document concerned was created or received. Section 117(7)

This provision is of particular importance to the prosecution as it is the only way of challenging the admissibility of business and other documents tendered by the defence. The provisions in the 1988 Act in relation to discretion have been judicially considered. The new test is in favour of admissibility rather than in favour of exclusion, so cases on Section 25 of the 1988 Act will no longer be relevant.

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Common Law categories of admissibility

Section 118 of the 2003 Act specifically preserves the following common law rules:

• Published works dealing with matters of a public nature, public documents, public records and the rule permitting evidence of a person's age or date or place of birth to be in hearsay form;
• Reputation as to character; reputation or family tradition as proof of marriage, a public or general right or the identity of any person or thing;
• Res gestae (if the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded, the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or the statement relates to a physical or a mental state such as intention or emotion);
• Confessions and mixed statements;
• Admissions by agents; common enterprise and expert evidence (where an expert witness may draw on the body of expertise relevant to his field).

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Inconsistent and other previous statements of witnesses

The 2003 Act also deals with previous statements of witnesses.

Inconsistent statements must still be admitted or proved in accordance with the Criminal Procedure Act 1865. (The CPA 1865 requires that any inconsistent or former statement is mentioned to the witness and he must be asked whether or not he made such a statement before proof of the making of the statement is given). Previously such statements were admissible only as to the credibility of the witness. The new position is that once the statement is admitted it becomes evidence of the truth of matters stated in it if oral evidence of that matter would be admissible Section 119.

(R v Joyce [2005] EWCA 1785) provides an example of the use of section 119. In Joyce the defendant was positively identified by several witnesses who made detailed statements setting out the certainty of their identification. At trial the witnesses all claimed that they were now uncertain as to their identification, contrary to their previous statements. The clear inference was that the witnesses had been put under pressure to change their evidence. The judge admitted the previous statements as evidence of the original identifications and the jury convicted on the basis that these statements were true.

Other previous statements, once admitted, become evidence of truth. Statements under this provision require the witness to be called to give evidence Section 120(1).

If a previous statement is admitted to rebut a suggestion that his evidence has been fabricated, the status of the evidence is that it is admissible of any matter stated of which oral evidence would be admissible. Thus the whole statement becomes evidence of truth of statements contained in it and not just as evidence of credibility Section 120(2).

A statement used to refresh memory while giving evidence, on which he is cross-examined and which as a consequence is admitted in evidence becomes evidence of truth Section 120(3).

A statement is admissible if whilst giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth and one of the following three conditions apply:

1. The statement identifies or describes a person, object or place Section 120(5) or

2. The statement was made when matters were fresh in his memory but he does not and cannot reasonably be expected to remember them well enough to give oral evidence of them in the proceedings Section 120(6); or

3. All of the following are satisfied:

• The witness claims to be a person against whom an offence has been committed,
• The offence is one to which the proceedings relate,
• The statement consists of a complaint made by the witness about a conduct which would constitute the offence or part of it,
• The complaint was made as soon as could reasonably be expected,
• The complaint was not made as a result of a threat or promise and
• Before the statement is adduced the witness gives oral evidence in connection with the subject matter Section 120(7).

An effect of these provisions is that there will not automatically be the possibility of bringing in evidence of recent complaint. If the complaint is delayed then it may not be admissible at all. (This may be a situation for considering admissibility under Section 114(1)(d).) See (R v Openshaw [2006] 2 Cr App R. 27). The question of whether the complaint was made "as soon as could reasonably be expected after the alleged conduct" depended on the context of the case and the person to whom it is made. In Openshaw a complaint made four months later was admitted.

Prosecutors are reminded that Section 139 the Act 2003, which is already in force, provides that a witness may refresh his memory from a document made or verified by him at an earlier time. The conditions for refreshing memory are only that the witness states in his oral evidence that the document records his recollection of the matter at that earlier time and that his recollection at that time is likely to have been significantly better at that time than when he is giving his evidence. The provision also applies to a transcript of a sound recording. Sound recording is not defined in this part of the Act. It is submitted that it would apply to the sound recording contained in a video or DVD.

Since a previous statement of a witness can become evidence of truth in the circumstances provided for in Section 120, it may be good practice to routinely allow witnesses to refer to previous statements whilst giving evidence, confirming that they are true and that their recollection when they made the statement was significantly better than now. In any event a prosecutor should always consider introducing a previous statement if it contains a detailed description Section 120(5). This assists the witness giving evidence and enables the court to be given the best evidence. It removes the "memory test" aspect of giving evidence.

The provisions in Section 120 may also be of use when dealing with reluctant and hostile witnesses. It will still be necessary to show that the witness is hostile but once that is done all that is then required is for the witness to confirm any previous statement.

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Multiple Hearsay

Multiple hearsay refers to the situation where information is relayed through more than one person before it is recorded.

Multiple hearsay is only admissible if:

• Either of the statements is admissible under section 117 (business documents), section 119 (inconsistent statements) or section 120 (other previous statement); or
• All parties agree; or
• The court uses its discretion to admit - Section 121.

The latter discretion is framed differently to the overall discretion of the court and requires the court to be satisfied that the value of the evidence, 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.

It is submitted that the discretion in Section 121 is to be viewed as a higher test than the discretion in Section 114(1)(d). This is because multiple hearsay is more likely to be unreliable. There may still be circumstances where it can be reliable. For instance the following example was given to the Law Commission. A and B are elderly sisters who are both lying ill when they hear that their acquaintance X has been arrested on a serious charge. A realises that she saw X board a train at a place and time which are inconsistent with his guilt, and she tells this to B just before she dies. B tells this to C, a parson, just before she, too, dies. The information coincides exactly with Xs alibi defence at the trial. The Law Commission accepted that this evidence ought to be admissible.

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Documents produced as exhibits

Copies of documents or statements admitted under Section 119 or Section 120, which are exhibited, should not normally go out with the jury unless the court so directs in the interests of justice or all parties agree - Section 122.

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Capability to make a statement

The witness making any statement which is admissible by reason of Sections 116,117,119 or 120 must have the capability to make the statement, i.e. must be capable of understanding the questions put to him about matters stated and giving answers which can be understood - Section 123

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Credibility

The credibility of any witness who does not give evidence can be challenged by admitting evidence relevant to credibility as if the witness were giving the evidence in person, by admitting evidence of any matters that could have been put in cross examination and admitting evidence of an inconsistent statement as proof of contradiction Section 124(2). Another party may be permitted to lead additional evidence to deny or answer any allegation made - Section 124(3).

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Stopping the case where evidence is unconvincing

In a trial before judge and jury the judge has the power to direct an acquittal or discharge the jury if after the close of the prosecution case he considers that the case is based wholly or partly on a hearsay statement and that statement is so unconvincing that, considering its importance to the case against the defendant, his conviction would be unsafe - Section 125. This provision only applies to jury trials on the basis that in these circumstances Magistrates would be bound to acquit.

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General discretion to exclude evidence

The court is given a general discretion to refuse to admit hearsay evidence under the Act 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(1).

The 2003 Act specifically preserves the power of the court to exclude prosecution evidence under Section 78 of the Police and Criminal Evidence Act 1984 and any other power to exclude evidence at its discretion Section 126(2). It should be noted that Section 78 relates only to the exclusion of prosecution evidence and the common law rules refer to exclusion if it is necessary to secure a fair trial for the accused. It is submitted that the only discretion to exclude defence evidence is that contained in Section 126(1).

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Expert evidence: preparatory work

A statement prepared for the purposes of criminal proceedings made by a person having personal knowledge of any matter stated can be relied upon by an expert to base an opinion on it Section 127.

It is a requirement that notice be given to the other party that the expert will be basing an opinion or inference on the statement. The notice must provide the name of the person making the statement and the nature of the matters contained in it.

There is discretion to require the attendance of the witness in certain circumstances. Section 127(4) and Section 127(5). The court must take account of the expense of calling the witness, whether relevant evidence could be given by that person which could not be given by the expert and whether that person can reasonably be expected to remember the matters stated.

The effect of Section 127 is to create an exception to the hearsay rule for information relied on by an expert, subject to the court's discretion to require attendance of the relevant witness. Section 127 should deal with the problem identified in (R v Jackson [1996] Crim LR 732) where the defendant did not in fact dispute the experts conclusion but had not formally admitted the facts on which it was based. No evidence of those facts was presented to the court in the course of the prosecution case, and it was only after the defendant had given evidence that the point was taken. However, it will be necessary to obtain the details of the individuals who did the work and serve the required notices.

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Confessions

Section 128 of the 2003 Act inserts Section 76A into the Police and Criminal Evidence Act 1984. This enables a defendant to introduce a confession made by a co-defendant subject to his proving (on the balance of probabilities) that the confession was not made by oppression or in circumstances likely to render it unreliable.

Facts discovered as a result of a confession will still be admissible even if the confession is excluded.

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Representations other than by a person

A statement made by a machine (e.g. a computer), which relies on information supplied by a person, is only admissible to the extent that the information provided was accurate Section 129(1).

The presumption that a mechanical device has been properly set or calibrated is specifically preserved Section 129(2).

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Depositions

Paragraph 5(4) of Schedule 3 to the Crime and Disorder Act 1998 is repealed. This means that a judge now has no power to overrule an objection to a deposition being read in evidence.

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Evidence at retrial

The Criminal Appeal Act 1968 is amended by Section 131 so that if evidence was given orally in a trial it must be given orally at any retrial unless all parties agree or a witness is unavailable in accordance with Section 116 or unavailable for other reasons and the court admits it under Section 114(1)(d).

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Rules of Court

The Act provides for the making of rules of court and imposes sanctions if the requirements of the rules are not complied with Section 132.

The relevant rules are the Criminal Procedure rules Part 34. The rules require written notice to be given to the other party and to the court when making applications under sections 114(1)(d), 116, 117 and 121

• In the magistrates' court the prosecution must give notice at the same time as providing primary disclosure
• In the Crown court the prosecution must give notice not more than 14 days after- committal, consent or preferment of a bill of indictment, notice of transfer or service of case.
• The defendant must give notice not more than 14 days after the prosecution have served primary disclosure
• Any objection to the introduction of hearsay must be made by notice given within 14 days of the service of the hearsay notice.

Prosecutors must be alive to the differences in the trigger for giving notice in the Crown Court. Whilst it would be sensible to consider primary disclosure at the same time as giving notice in relation to hearsay, the time limit for hearsay is potentially shorter.

The Criminal Procedure Rules and the forms for giving and opposing notice of intention to introduce hearsay evidence is available on the Court Service website.

From a case management viewpoint, there will be a number of challenges faced by the legislation and the notice provisions. Hearsay evidence will become relevant at various different stages.

In many cases there will be knowledge of hearsay at the pre charge advice stage. Prosecutors should identify hearsay evidence in the MG3 so that the service of notices within the required time scales will always be possible. Consideration about hearsay may arise at the time that any special measures for witnesses are considered. These issues ought properly be addressed at the pre-charge stage, although it is appreciated that many of the cases involving special measures and vulnerable and intimidated witnesses may well be charged on the basis of a threshold test. These issues must be dealt with at the full review.

Consideration of hearsay may properly arise at subsequent stages of the proceedings. Witnesses may become unavailable unexpectedly or a special measures application may have been refused. Prosecutors will have to keep issues of hearsay under continual review and comply with the notice requirements wherever possible.

The court may vary or waive the notice requirements. (Rule 34.7) This should not be relied upon, but may be required when the reason for admitting hearsay is raised at a late stage in the proceedings. For example, a witness may become unavailable during the proceedings. If the strict requirements are not met then the evidence can only be admitted with the court's leave. There may also be costs implications and the court or jury can draw inferences from the failure. The procedural rules, cost's sanction and inferences apply equally to the prosecution and defence. For guidance on the exercise of the court's discretion to extend time limits see (R (on the application of Robinson) v Sutton Coldfield Magistrates Court [2006] 2 Cr App R. 13)

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Proof of statements in documents

Statements in documents can be proved by producing the original document or an authenticated copy of it Section 133.

A copy is defined as anything onto which information recorded in the document has been copied Section 134.

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Practical considerations

Prosecutors need to consider hearsay evidence and the potential for admitting it at every review of the evidence. Consideration of the admissibility of hearsay should be made at the time of the making of the initial charging decision. Any risks to the admissibility of hearsay should be identified and due account of those risks taken into account in satisfying the evidential test under the Code for Crown Prosecutors. Those issues should be recorded on the MG3.

Prosecutors should still consider whether the hearsay evidence in a statement is necessary evidence. For example there is often hearsay evidence in a medical statement. There is no need to consider whether to seek to admit the hearsay if the injured party is going to give evidence. Normally, the purpose of the medical report is to confirm the injury, not what was said to the doctor. Proper editing of statements may then enable the statement to be admitted by agreement pursuant to Section 9 Criminal Justice Act 1967.

Prosecutors must be aware that there is a distinction to be drawn between uncontested evidence that is read pursuant to Section 9 CJA 1967 or Schedule 2 of the Criminal Procedure and Investigations Act 1996 and hearsay evidence. The fact that a statement has been accepted pursuant to Section 9 for example does not automatically make the evidence in it admissible but any admissible evidence that is read then has the status of evidence as if it had been given orally. In other words, it is agreed and uncontested evidence. In relation to hearsay evidence the court will have to consider what weight to be given to the evidence and any jury will be directed to take account of the fact that the witnesses evidence cannot be challenged by cross examination.

Because of the similarity in some the provisions in the 1988 Act and the 2003 Act then guidance can still be obtained from the case law relating to the 1988 Act, for example:

• Death can be proved by certificate and unfitness through bodily condition by medical evidence.
• Police Officers may have to give evidence to show what steps have been taken to trace unavailable witnesses or what would be required to secure the attendance of a witness outside UK. What is reasonable will depend on the importance of the evidence, the reason for non attendance, prejudice to the defendant and the cost of bringing the witness to court see: (R v Castillo [1996] 1 Cr. App. R.438).