Hearsay – Relying on the evidence of an absent witness at criminal trial

What is Hearsay?

If you want to prove something to be true in court, the usual rule is that you have to call a witness at trial to give live evidence. 

Where this witness is unavailable, you cannot get round the problem by:

  • Calling a third party to tell the court what the original witness told them about it; or

  • Producing a written witness statement or other document to prove it, even if this is from the original witness and contains their first-hand account of what took place.

This type of evidence is known as Hearsay, i.e. evidence intended to prove something as true from a witness who is not in court to give that evidence him or herself.

The Hearsay Rule

Hearsay is inadmissible, meaning that it is not permitted to go before a jury or magistrates at a trial as evidence to prove a matter, either for the prosecution or the defence. This is known as the Hearsay Rule (or sometimes as the Rule Against Hearsay).

As usual with the legal rules, there are exceptions! The exceptions to the Hearsay Rule (which enable an application to be made to the court to rely on hearsay evidence) are set out below.

Why is Hearsay Evidence inadmissible?

Hearsay is inadmissible because it is not the best evidence of proof. The best evidence at trial will come from the original witness who can explain not only what they saw or heard, but can also answer any questions about it.

It is what a witness saw with their own eyes or heard directly with their own ears that counts when they give evidence in court. After all, experiencing an incident yourself makes you the best person to explain exactly what happened.

Second-hand accounts

If you told someone else what had happened to you and they then told the court, it would just be a version of what you told them, not what they experienced themselves. It would be a second-hand, not a first-hand account.

The second-hand witness, having not experienced the incident themselves, would not be in a position to answer detailed questions regarding all the details and circumstances of the incident. The more detached the message becomes from the original witness, the more confused it is likely to become.

This is why a second-hand account is considered to be hearsay. Unless an exception to the hearsay rule applies, this second-hand account will be inadmissible.

Even an original witness to an incident can inadvertently or deliberately stray into what someone else told them about an incident. i.e. “I saw it all with my own eyes and later on Jack told me that he saw …” Although this is common in everyday conversation it is not usually permitted in court. If this happens the judge or advocate will intervene to prevent it, unless the judge decides that it is in the interests of justice to hear it, in which case it will be allowed.

Where the prosecution or defence only have hearsay available which they wish to rely on at trial to prove something to be true, they can make an application (a hearsay application) to the court based upon one or more of the exceptions below. If successful, the hearsay will become admissible as evidence.

No witness, just a witness statement.

Hearsay problems also arise where someone is not available to give evidence by the time of trial, and all the prosecution or defence have available is their account of what happened in a written witness statement or other document.

If only their written witness statement is available, it will not be possible for the other side to cross-examine the witness and, potentially, to expose flaws or weaknesses in their acount of what took place.

Occasionally, what appears as compelling evidence on paper is far less compelling when the witness attends and gives evidence at trial. This could be for all manner of reasons, such as the witness originally not telling the truth, exaggerating, filling in the gaps in their own mind, partly relying on what somebody else had told them, or just being mistaken or confused.

Conversely, there are occasions where a witness is far more compelling in person than would ever have been anticipated by reading their witness statement. Either way, where evidence is disputed the best evidence will always be from the witness giving evidence in person.

This is why a written account on its own is considered to be hearsay. Unless an exception to the hearsay rule applies, the statement will be inadmissible.

Examples of Hearsay Evidence

Example 1 – Supporting Witness – Jane 

Imagine you are charged with a burglary. Your defence is alibi, and you say you were at your friend Jane’s house, which is 20 miles from the burgled house, when the burglary took place . Jane has provided a written statement confirming this. You intend to call Jane at your trial to give evidence.

When the case comes to trial, Jane cannot be found. This means that you are unable to call her to give evidence to back up your defence. The prosecution will not agree for you to read her statement, because they dispute her account.

As it stands Jane’s evidence in a written witness statement, is hearsay. You want to rely on it to prove that you were not at the scene of the burglary, but you do not have her in court.

As hearsay evidence, her statement is inadmissible. The only way you can rely on the statement is if the judge grants permission for you to do so. You would have to make an application to the court to rely on an exception to the hearsay rule for unavailable witnesses and if granted, you would be entitled to read the statement as part of your defence and the judge would give directions to the Jury on the weight to be given to that statement. If refused, you would be unable to read it out

Example 2 – Supporting Witness – Barbara 

You are charged with assault by throwing a coin at someone and cutting their head. Barbara who is a prosecution witness, alleges that she saw you do it. You deny it. Your defence is that your friend did it and Barbara is an ex-girlfriend who you parted with on bad terms and she saying it was you to cause you trouble.

On the day of the trial Barbara cannot be located. She gave a detailed account of what she said she saw in a written witness statement. The prosecution cannot rely on this as it is inadmissible hearsay evidence. A friend of Barbara’s calls the police and tells them what Barbara had told her about the incident. That friend cannot be called by the prosecution, as this second-hand account would be hearsay evidence.

The only available avenue for the prosecution is to seek to rely on being able to read Barbara’s statement under the exceptions to the hearsay rule for unavailable witnesses.

Exceptions to the Hearsay Rule for unavailable witnesses

The first category of exceptions to the hearsay rule concerns specific circumstances where the prosecution or defence have the witness’s statement in written or recorded form, but are unable to get the original witness to court.

Witnesses may be unavailable to give evidence at trial for many reasons.

They might be refusing to come to court due to fear or anxiety, they might have moved home without leaving a forwarding address, they might be unwell, or in some cases a witness might have died after giving their witness statement but before the case comes to trial.

Section 116 of the Criminal Justice Act 2003 permits a judge to allow hearsay evidence only where:

a) the evidence would have been admissible if given by the witness at trial (i.e. an account which is relevant to what it is being used to prove and would have been permitted if the witness was available); and

b) the person who made the statement is identified to the court’s satisfaction (i.e. an anonymous statement would not be permitted); and

c) any one of the following 5 five reasons for the witness being unavailable is satisfied:

1) the witness is dead;

2) the witness is unfit to be a witness because of their bodily or mental condition;

3) the witness is outside the United Kingdom and it is not reasonably practicable to secure their attendance;

4) the witness cannot be found, although such steps as it is reasonably practicable to take to find them have been taken;

5) the witness will not give evidence through fear. In these circumstances the statement can only be used where the court considers it is in the interests of justice to do so, taking into account all of the following:

  • the contents of their statement;

  • to any risk of unfairness to either side by admitting or excluding their evidence;

  • to whether Special Measures could be used to assist the witness (e.g. giving evidence from behind a screen or from a remote location via live video link); and

  • to any other circumstances considered to be relevant.

For example, using ‘Example 2″ above, if she cannot be found despite all reasonable enquiries being made to find her, the judge can allow the prosecution to read her statement in court and rely on it to prove the allegation.

It is worth bearing in mind that s.116(5) Criminal Justice Act 2003 prevents any of the five exceptions above being used where they were caused by (or on behalf of) the person seeking to rely on them.

Further exceptions to the Hearsay Rule

In addition to hearsay applications based on particular reasons for the unavailability of a witness, there are a number of further exceptions to the Hearsay Rule which allow the Court to hear evidence which does not come directly from the original witness.

These further exceptions are contained in section 114 and sections 117 to 120 of the Criminal Justice Act 2003 and include:

  • Business records and other documents created or received by a person in the course of a trade, business, profession or other occupation. This could apply, for example, to records of sales made and other ledgers;

  • Public information, such as published works dealing with matters of a public nature (e.g. histories, scientific works, dictionaries and maps); public documents (e.g. public registers); records (e.g. the records of certain courts); and evidence relating to a person’s age, date or place of birth;

  • Expert evidence, where expert witnesses draw on a body of expertise relevant to their field;

  • Res gestae – a spontaneous statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded (e.g. a person running from a chemists shop immediately after a stabbing has taken place and shouting to a passer-by, ‘Don’t go in there, Jim has just stabbed someone.’ If the person running from the shop is unavailable to give evidence, then a witness who overheard this could give evidence for the prosecution to prove that a person called Jim had stabbed someone).

  • Confessions – a defendant’s confession to the crime can be given by the person who overheard it. (Note that the defence can seek to exclude confessions under sections 76 and 78 of the Police and Criminal Evidence Act 1984.)

  • Where the prosecution and defence agree that the hearsay should be admitted as evidence. Where all parties agree, hearsay can be admitted without the need for an application to the judge or magistrates, although the evidence would have to be relevant and the judge or magistrates informed that agreement had been reached.

  • Where the court considers it is in the interests of justice for the hearsay to be admitted as evidence. This fall-back provision requires the judge or magistrates to consider multiple matters set out in s.114(2) Criminal Justice Act 2003, including the importance of the evidence, the probative value of the statement, any other available evidence on the issue, the reliability of the original witness, the circumstances in which the statement was made and the level of difficulty and prejudice (i.e. disadvantage) involved in challenging the statement.

The Hearsay Application

Where the prosecution or defence wish to rely on hearsay as evidence at trial, they must make a hearsay application.

Proof is required to support the ground relied on (e.g. a death certificate to prove that a witness is deceased; a medical or psychiatric report to prove that a witness is unfit; or evidence of what steps have been taken to locate a witness who cannot be found to prove that all reasonably practicable steps have been taken to find them).

Depending on the ground relied upon, hearsay applications can be complex and often result in legal argument.

“The Criminal Procedure Rules are not decorative. They are there for a reason. The structure and language of the rules, if complied with, should ensure that tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem. That is the point of the Rules. … The purpose of the rules is to ensure that both sides give their minds properly to what can be technical and difficult issues of admissibility”

— Smith [2020] EWCA Crim 777


Excluding Hearsay Evidence

When considering a hearsay application, even where one of the exceptions to the hearsay rule applies and is made out, the court retains a discretion to exclude the hearsay (i.e. to disallow its use at trial).

This general discretion to exclude hearsay from consideration at trial is contained in s.126 of the Criminal Justice Act 2003. This allows for hearsay statements to be excluded:

  • where ‘the court is 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, taking account of the value of the evidence’ (s.126(1)(b)); or

  • using any other power of a court to exclude evidence, such as the power to exclude prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984.

“78 Exclusion of unfair evidence.
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

— Section 78 Police and Criminal Evidence Act 1984


Using Hearsay Evidence at trial

Where an application is granted to use hearsay, the hearsay can be used as evidence in the case (i.e. it is capable of being used as proof).

However the Court does not have to accept it. Instead, they will weigh it up just as they would if the witness had given live evidence and consider it along with all other evidence in the case.

Where hearsay is admitted as evidence at trial, the opposite party can still place before the Court any evidence which could properly have been put to the witness in cross-examination, if that witness had been present in court (s.124 Criminal Justice Act 2003). For example, this could include evidence to contradict the witness which would have been put to them in cross-examination, such as a previous inconsistent statement.

In summing-up the case to a jury in the Crown Court, the judge would make the jury aware of the limitations on the hearsay evidence, including that the evidence was not given on oath, they have been unable to assess the witness’s demeanour and they have not seen the evidence tested under cross-examination (i.e. being the reasons why hearsay is not usually permitted at trial in the first place).

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