What Are the Rules for Hearsay Evidence in Court?

Understanding how evidence is admitted in court is fundamental to appreciating how justice is administered. One of the most complex areas of evidence law is hearsay - statements made outside the courtroom that are tendered to prove the truth of what they contain. In criminal trials in England and Wales, hearsay evidence is generally inadmissible unless specific legal rules allow it. This article explains what hearsay is, when it can be used, the statutory framework governing it, procedural requirements, and common issues that arise in court.

Introduction

Hearsay evidence refers to statements not made in oral evidence in the proceedings that are offered to prove the truth of the matter asserted. Because the person who made the statement is not available for cross‑examination in court, hearsay is traditionally regarded as less reliable than direct testimony. The law therefore places strict limits on its admissibility in criminal trials. The general rule against hearsay and its exceptions are primarily set out in the Criminal Justice Act 2003 (CJA 2003).

What Is Hearsay?

Under section 114 of the Criminal Justice Act 2003, hearsay is any “statement not made in oral evidence in the proceedings” that is used to prove the truth of what it says.  

• A statement includes any representation of fact or opinion, whether written, spoken to another person, or even pictorial material that conveys factual assertions.
• A statement is hearsay if it is relied upon in court to prove what it asserts rather than merely to show that the statement was made.

Examples include a witness's written account read to the jury, a letter describing an event, or a third‑party comment repeated by someone else.

The General Rule Against Hearsay

As a starting point, hearsay evidence is inadmissible in criminal proceedings. This is because it is produced outside the protections of oral testimony and cross‑examination. The law assumes that direct evidence given in court is more reliable than out‑of‑court statements.

However, the Criminal Justice Act 2003 provides a structured framework under which hearsay evidence may be admitted if one of the statutory gateways or exceptions applies.

When Is Hearsay Evidence Admissible?

Under section 114(1) CJA 2003, hearsay evidence can be admitted if at least one of the following conditions is satisfied:

1. It is made admissible by a statutory provision (such as specific sections of the Criminal Justice Act).
2. It falls within a common law exception preserved by the Act (for example, res gestae or confessions).
3. All parties to the proceedings agree to its admissibility.
4. The court is satisfied it is in the interests of justice to admit it.

These gateways provide a more flexible approach to hearsay than the strict common law position that existed previously.

Key Statutory Gateways

1. Witness Unavailability (Section 116 CJA 2003)

Hearsay may be admissible where the witness who made the statement is unavailable for reasons such as death, illness, being outside the UK, inability to locate the person, or fear of testifying. In such cases, the court must be satisfied the absent witness is identified and that oral evidence would otherwise be admissible.

2. Business and Other Documents (Section 117 CJA 2003)

Statements contained in certain business documents may be admissible where they were made in the ordinary course of business and meet specified criteria.

3. Previous Inconsistent or Consistent Statements (Sections 119–120 CJA 2003)

A witness's prior written or recorded statement can be admitted in certain circumstances. This might be to rebut claims of recent fabrication or to support oral evidence where memory has faded.

4. Multiple Hearsay (Section 121 CJA 2003)

If a hearsay statement contains another hearsay component, it can only be admitted if each layer of hearsay falls into an admissible category, all parties agree, or the interests of justice require it.

Common Law Exceptions Preserved (Section 118 CJA 2003)

Although the Act modernised hearsay law, some common law exceptions still apply, including:

• Res gestae: Statements closely connected in time and circumstance with an event.
• Confessions: A defendant's own admission may be admissible as an exception to the rule.
• Admissions by agents: Statements by those authorised to speak on behalf of a party.

These exceptions reflect long‑standing legal principles predating the CJA 2003.

Interests of Justice Test (Section 114(1)(d) CJA 2003)

Even if a statement does not fall into a specific exception, a judge can admit hearsay evidence if it is in the interests of justice to do so. When deciding this, the court considers:

• The value and relevance of the statement.
• The importance of the evidence in the case.
• The circumstances in which the statement was made.
• Whether the maker appears reliable and the statement's reliability can be assessed.
• Whether oral testimony could be given instead.
• How difficult it would be to challenge the statement.

This discretionary gateway ensures that important evidence is not excluded unfairly where fairness and reliability support its use.

Procedural Rules and Notice Requirements

In criminal cases, parties seeking to rely on hearsay evidence must follow procedural rules, including:

• Serving written notice to the court and other parties of the intention to introduce hearsay evidence, as required by the Criminal Procedure Rules (Part 20).
• Providing sufficient information about the grounds for admissibility and the statutory gateway relied upon.
• Allowing opposing parties time to prepare objections or responses.

Failing to comply with notice requirements can jeopardise the admissibility of hearsay.

Judicial Discretion to Exclude Hearsay

Even if hearsay is technically admissible under a gateway or exception, the court retains a general discretion to exclude it if admitting the statement would:

• Cause undue delay or waste of time.
• Prejudice a fair trial.
• Render proceedings unfair due to reliability concerns.

Judges often balance these factors carefully, particularly in jury trials where the absence of cross‑examination may reduce the weight that can be attached to hearsay.

Weight and Jury Directions

Where hearsay is admitted, the jury or tribunal is typically instructed on how to assess its weight. Hearsay may be weaker evidence than live testimony, and the decision‑maker must consider:

• Whether corroborating evidence exists.
• How essential the statement is to the prosecution or defence case.
• The circumstances in which it was made.

The law recognises that hearsay alone should not determine a conviction unless the totality of evidence satisfies the standard of proof beyond reasonable doubt.

Practical Examples of Hearsay

• A written police statement from a witness who has since died may be admissible under Section 116 if the other conditions are met.
• A business record detailing transactions may be admitted under Section 117.
• A partner's description of an event recorded in a contemporaneous document can be considered under specific exceptions if properly justified.

These examples illustrate how the hearsay framework operates in real‑world criminal cases.

Key Takeaways

• Hearsay evidence consists of out‑of‑court statements offered to prove the truth of what they contain and is generally inadmissible in criminal trials unless authorised by law.
• The Criminal Justice Act 2003 provides structured gateways, including witness unavailability, business documents, and previous statements, under which hearsay may be admitted.
• Common law exceptions and the interests of justice discretion offer additional avenues for admissibility.
• Parties must give notice of any intention to rely on hearsay, and the court retains discretion to exclude evidence that would prejudice fairness.
• Where hearsay is admitted, its weight is assessed alongside all other evidence.