Criminal Justice Act 2003

Criminal Justice Act 2003

2003 CHAPTER 44

Commentary on Sections

Part 11 - Evidence

Chapter 2: Hearsay evidence

Section 114: Admissibility of hearsay evidence

395. Subsections (1)-(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it. For example, if B was charged with robbery of a jewellers, the prosecution might want A to testify that B told her that he was “outside the jewellers at midday on Monday” in order to prove that B was outside the jewellers at the relevant time. As these subsections remove the common law rule against the admission of such hearsay evidence, this out-of court statement will be admissible in A’s testimony, provided it comes under one of the following heads:

• It is admissible under a statutory provision;

• It is admissible under a common law rule preserved by this Chapter of Part 11 of the Act;

• The parties agree that it can go in; or

• The court gives leave to admit the statement.

396. Before the court can grant leave to admit such a statement (under the fourth head above and found in subsection (1)(d)), it must be satisfied that it is in the interests of justice to admit the evidence. The intention, therefore, is that the court should be able to admit an out-of-court statement which does not fall within any of the other categories of admissibility, where it is cogent and reliable.

397. Subsection (2) sets out some of the factors that the court must consider when deciding whether to grant leave under the discretion in Subsection (1)(d). Some of these factors are:

• the degree of relevance of the statement in proving a matter in issue in the trial (assuming the statement to be true);

• the circumstances in which it was made (if indeed it was made at all);

• the extent to which it supplies evidence which would not otherwise be available;

• the creditworthiness of the maker of the statement;

• the reason why oral evidence cannot be given;

• the extent to which the other party can challenge the statement, and the risk of unfairness.

398. The list is intended to focus attention on whether the circumstances surrounding the making of the out of court statement indicate that it can be treated as reliable enough to admit it as evidence, despite the fact that it will not be subject to cross-examination.

399. Subsection (3) provides that out of court statements may still be excluded even if they fulfil the requirements in this Chapter. For example, confessions must meet the additional requirements of sections 76 and 78 of the Police and Criminal Evidence Act 1984 before admission.