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Hearsay Evidence, Statutory Accommodation in the UK

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Published: 7th Aug 2019

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Jurisdiction / Tag(s): UK Law


Chapter 2, Part 11 of the Criminal Justice Act, 2003(hereinafter “2003 Act”) [1] has sought to redefine and regulate the exclusionary rule against hearsay and the permissible exceptions. However, the reforms have both principled and practical difficulties. Principally, the rule, rooted in common law, ensures protection of the accused by making inadmissible evidences, those that cannot be examined by him. In this context, the paper seeks to examine the issue of whether the 2003 Act reaches a middle-ground in trying to reconcile its international obligation to abide by the above principle and its domestic interest in prevention of crime. Practically, the 2003 Act modifies the circumstances to which the hearsay rule applies. Whether this achieves the purpose it aims at has been examined. Here, the effect on assertions that are unintended, more specifically implied but unintended, has been specifically analysed.

I. Redefinition Of Hearsay – Implications On Implied Assertions

Amongst the reforms brought out by the 2003 Act, one of the most significant is to redefine the concept of hearsay, thereby impacting the hitherto rule of hearsay in both form and substance. In general, the common law rule against hearsay operated to exclude assertions made out of Court which were used as evidence of the matter it contained. The rationale behind the same was because apart from being unreliable and indirect, it adversely impacted the right of the accused to examine all the witnesses against him. [2]

A question arises as to what kind of assertions the rule applies against. It is in this context that the concept of ‘implied assertions’ gains significance. The issue is whether the rule would apply against those matters that could be inferred from express statements, where the contents of the latter per se are not in issue. The answer to this came in the case of Wright [3] where the Court reasoned that when one deems an implied assertion to be an express statement and the latter would have been excluded, in such cases, it became imperative to extend the hearsay rule against such assertions as well. Similarly, in the case of Teper [4] the identity of the accused was proved with the evidence of a police officer who heard a woman shout out to the defendant at the time of incident, exclaiming at the fact that he was running away. The Privy Council in the case rejecting the evidence held that the statement was being used as evidence to show that the accused had been identified, as can be implied from the statement that the police man heard, if which were an express statement would have been excluded as the woman did not appear in Court.

Arguably the decisions are reasonably justified because the rationale behind excluding hearsay evidence would extend to these implied statements as well: risk of insincerity, possibility of concoction, inability of the accused to examine the maker etc. However, the Court here is making an objective inference as to the underlying assertion and attributes the same to the maker. This does not address the problem where the maker of the statement did not intend to convey what the Court infers from his statement.

Kearley, 1992

The Court in the case of Kearley [5] faced a peculiar situation where the evidence available with the prosecution trying to prove possession of drugs with intention to sell was the list of calls that the police received on the phone of the accused when they were on the spot investigating the case. The House of Lords in a 3-2 majority held the evidence to be inadmissible on two grounds. It is to be noted that the calls received were requests for drugs and those were being used by the prosecution to imply that the person was actually a drug seller.

At one level, the evidence of calls was irrelevant and hit by the hearsay rule at another. The fact in issue was whether the accused, X was a drug-dealer and to that extent, the evidence of callers placing orders indicated only the state of mind of the potential buyers themselves and not that X intended to provide them the same and therefore irrelevant. But certain calls which were relevant [6] remained inadmissible because of the rule of hearsay, because “implied assertions” were as much part of the scope of the rule as were express statements. Though the fact in issue was not expressly asserted, the words used were to that effect and must thus be excluded.

Whether the Court adopted the rule of hearsay as an excuse to evade the tough questions of credibility of the callers, verifiability of their beliefs and the reliability etc. is debatable. [7] In any case, the implications of this decision are huge and the case has been subject to criticisms at several levels. By extending the width of the rule, the prosecution’s burden was greatly increased and stood as an obstacle in the development of exceptions to the rule, which was the trend then. [8]

Another plane at which the decision was criticised was for the lack of traditional dangers in hearsay express statements. Implied assertions are less vulnerable to concoction and to insincerity than express assertions because it is ‘easier to tell a lie than to act one’. [9] Further, a common practice adopted by Courts is to look at the conduct of persons concerned in order to aid inferences about their role in the concerned facts; this practice now faces a hearsay attack as a result of Kearley.

Criminal Justice Act, 2003

The Law Commission Report [10] which recommended statutory codification of the common law rule of hearsay, for purposes of clarity and consistency, considered the abovementioned criticisms levelled against Kearley. The 2003 Act, which was largely based on the recommendations, aimed inter alia to “overturn the ruling in Kearley”. [11] Though the exceptions to the rule retained largely the same form in the statute as in common law, [12] the rule itself has been altered in terms of what qualifies as hearsay evidence. [13] As set out in Ss. 114 [14] and 115 [15] , an evidence must be a statement not made in oral evidence in proceedings… in evidence of any matter stated in order to come within the hearsay rule.

The definitions in S. 115 of the terms used in S. 114 has the effect of narrowing the latter to only statements, whose makers had the purpose of the conditions set out in either 115(3)(a) or (b). [16] This implies that if the purpose of the maker is not to assert or cause the other party to believe or act, it falls out of the purview of the exclusionary rule. It is not all kinds of implied assertions but only those unintended assertions were sought to be left out of the application of the rule. [17]

Though the intention was technically overrule Kearley which dealt with implied assertions, the framing of the relevant sections has modified the position on express statements as well. Therefore, any statement, express or otherwise, must have been intended by the maker to make the other party to believe or act on the basis of the statement’s contents.

It is important to analyze the status of those assertions that are no longer made inadmissible by virtue of being hearsay. Categorizing a certain piece of evidence as hearsay does not necessarily mean that the sources of the indirect statement are necessarily unreliable. [18] The converse holds good as well: a statement does not automatically become admissible simply on the ground that it is not hearsay. It seems obvious that the relevance of the evidence must then become the test. [19]

A valid argument which then becomes possible is: only that part of Kearley dealing with unintended implied assertions is overruled and thus the finding of irrelevance, of the phone calls to prove that X is the drug seller, still holds. [20] This argument came to be expressly rejected this argument in R v. Singh [21] which brought to light the several problems in the statute. The inter-relationship between S. 114 and S. 115, further depends on the interpretation of S. 118 as to whether the 2003 Act replaces the common law rule per se or just codifies the exceptions. An argument made was that the Act only restates the common law rule, which meant that hearsay outside parameters of S. 114 was possible and thus inadmissible.

The Court ruled that the deeply obscure relationship between Ss. 114 and 115 read with S. 118 clearly indicated the abolition of the common law exclusionary rule. Therefore, a statement falling out of S. 114 would not be hearsay, as was in the facts, and admissible. The surprising feature of this case is that despite holding that the Chapter 2 of the 2003 Act did not apply to the evidence adduced, it held that S. 118(1)(7) or S. 114(1)(d) could also be used for admitting the evidence in issue. Singh was a case relating to conspiracy, where the participation of the accused was sought to be proved by showing mobile records of co-accused.

A cause of concern is when the purpose of the maker and the purpose of the party adducing evidence do not coincide which came up in the case of Leonard. [22] Here, the texts sent by certain people to the accused regarding the quality of certain drugs, the possession of which he was charged with were brought to show that the implied assertion was that he is a drug dealer. The matter for which the messages relating to quality were used was to show that there had been supply, however, the purpose of the texter was to convey his opinion about the quality and there was no need for him to cause the other party to believe that he had supplied him previously. However, the Court seems to have wrongly interpreted the 2003 Act and held the evidence to be inadmissible hearsay. As seen above, S. 115(3) has led to more confusion than solution. It is not clear whether the purpose of the maker has to coincide with the matter for which it is being brought to the Court or for the truth of the contents. [23] It would be absurd to merely check whether the contents were intended and to ignore the relevance of the same to the fact in issue.

Another apparent problem that may arise is the conflict between S. 115(3)(a) and (b). For example, applying the facts of Kearley, though the Law Commission sough to reverse the decision, the messages placing orders of drugs can be inferred to mean that the maker’s purpose is to ensure that the other person acts on the basis that since he provided drugs previously, he is expected to continue. Again, this depends on what the ‘matter stated’ is determined to be. In any case, this leads to a situation where something that was not intended by the lawmakers to come within the purview of the hearsay rule, tends to get attracted by S. 115(3) and thus faces inadmissibility. [24]

II. Right To Fair Trial v. Hearsay Admissibility

The issue of redefinition has naturally affected the scope and applicability of the Rule, which, as observed above, has been greatly narrowed. As one of the primary justifications for exclusion has been the rights of the accused, the 2003 Act is vulnerable to several debates and thus faces a huge burden in showing how the dilution of the rule against hearsay does not necessarily mean a violation of the rights of the accused. The U.K. as a member of the ECHR faces the obligation under Article 6(3)(d) [25] of the ECHR to ensure the right of fair trial in terms of cross-examination of the witnesses to everyone. Accepting certain hearsay evidences as admissible exceptions to the rule is based on the premise that the rights as are found in the ECHR are not absolute. [26] But removing the applicability of the rule itself to certain evidences cannot borrow this premise, there needs to be a stronger basis. The Human Rights Act specifically mandates the courts to interpret legislation in conformity with the Convention. [27]

Adequate Safeguards In The Act?

Generally, that the Courts are vested with excessive discretion in admission of hearsay evidence, by virtue of S. 114(1)(d) [28] is relied upon to argue that the Convention obligations are violated by the 2003 Act. However, it is to be noted that the discretion is vested not only for furthering matters of admissibility but for rejection as well. Apart from the general discretion of Courts to exclude evidence. [29] The rights of the accused find protection as the Courts are permitted to stop the case when it opines that the prosecution’s case is wholly or partly based on admitted hearsay evidence which when relied upon for basing conviction would be “unsafe”. [30] Thus the conferment of discretion regulating inadmissibility functions as a balance against the excessive discretion to admit evidence, and in that sense, the 2003 Act is compatible with the Convention. Nevertheless it is arguable that the use of the term ‘convincing’ indicates that the consideration is not the rights of the accused but the reliability of the evidence irrespective of the impact on Article 6.

Sole/ Decisive Evidence Rule

This leads to the next issue of sole or decisive rule of evidence, wherein the validity of conviction based wholly on hearsay evidence is questioned. It is to be examined whether the safeguards mentioned earlier take the admissible evidence under the 2003 Act out of the purview of the sole or decisive rule. The European Court of Human Rights addressing the dispute in the case of Luca v. Italy [31] that the provision of opportunity to the accused to test the witness was of prime importance which meant that using unexamined witness as the sole basis for conviction affected Article 6(1).

In the case of Al-Khawaja [32] concerning statements admitted on grounds of unavailability due to death, the counter-balances were found inadequate to permit a decision on the sole dead witness’ statement. The Court of Appeal’s observation that right to cross-examination was merely one of the rights and thus admission of the evidence was not incompatible with the overall concept of fair trial was found faulty. Since the case was about a dead witness, the Court of Appeal had concluded that there was strong public interest in making such evidence admissible, and that the test is to look for fairness in the proceedings as a whole. [33] Al-Khawaja rejected the reasoning that the substance of Article 6 was merely illustrative of the considerations for a fair trial, but were express guarantees. [34] Though the rights under Article 6 are not absolute, in the case, the counterbalances urged by the government were found to be of limited weight. [35]

The difficulty in this judgment is that the Court does not involve in explaining what would constitute sufficient safeguards, especially in the case of a sole dead witness. Effectively, as a result of this judgment, the Courts will be left helpless whenever the only main witness is a dead one making conviction impossible in such circumstances. The English Courts have often stressed the need to follow certain procedures for counterbalancing the risks that might arise from compromising on Article 6(3)(d) in cases of necessity, [36] such as: proper direction to the jury regarding the quality, reliability of the evidence and the subsequent disadvantages to the accused. Nevertheless, with the 2003 Act, greater emphasis on such processes is required in light of the alteration of the scope of the rule which has resulted in admission of hearsay evidence in many more circumstance.

The Supreme Court in Horncastle [37] agreed with the decision of the Court of Appeal which responded heavily against Al-Khawaja. The effect of this decision is that the presence of the safeguards, found to be sufficient by the Supreme Court, makes the sole or decisive rule unnecessary in domestic jurisdiction. [38] In ruling against the Strasbourg Court’s decision, the Supreme Court speaking through Lord Phillips held that since that Court’s decision did not sufficiently appreciate the domestic Court’s practices [39] and lacked clarity in developing jurisprudence on the exceptions to Article 6(3)(d), a deviation from the same became inevitable. [40] The common law exceptions, subsequently codified by the 2003 Act were all based on a thorough analysis of the need to balance the two competing interests. Since the Act was itself based on considerations of justice and fairness, it constituted a composite code in itself. Applying the sole or decisive rule over the provisions of the 2003 Act would be to subvert the intention of the lawmakers which was to comply with the Convention in arriving at the exceptions to hearsay rule.

The practice in UK domestic courts has been in favour of admissibility, thus a series of cases have found that Article 6 is not violated by the mere absence of right to cross-examine. The consideration for this, as mentioned earlier, has been to look at the fairness in the proceedings holistically. Protection of witnesses from intimidation has been held to occupy one of the important reasons in deviating from the Strasbourg law.

A significant point that emerges from the judgment is the paradox in applying the sole or decisive rule as pointed out by Lord Phillips. If the rule were to be applied, it leads to a situation where a piece of evidence is relied upon more when it is peripheral which loses its value when it becomes cogent and more relevant.

The two points to be considered as held in Horncastle are 1. Whether there is a justifiable basis for the absence of the witness? and 2. Whether the reliability can be tested? The Supreme Court held that the Strasbourg case-law with respect to sole/decisive rule were in cases where either or both of the tests were not satisfied, therefore, the decision in Horncastle was justified.

Reconciling the extreme stances taken by the European Court of Human Rights and the English Courts is certainly difficult. On one hand is the question of fairness to the accused to be able to challenge every case against him and on the other is the problem of burdening the prosecution which is impossible to be relieved due to several circumstances. A disadvantage that arises from Horncastle is that some of the safeguards such as determination of reliability of unexamined witnesses by domestic Courts cannot be easily fulfilled. But strict compliance with the sole or decisive test will be dangerous because it gives an incentive to criminals to intimidate or kill their witnesses to escape conviction. [41]

It would be a misrepresentation to say that the decision in Al-Khawaja envisages an absolute scope for the sole/decisive evidence rule. Though the Court emphasized rigorous protection of the accused, it did recognize certain situations as special circumstances wherein the inability to bring the witness to the court could be a reason for relaxing the sole or decisive evidence rule such as: absence of witness because of intimidation by the accused himself [42] or the absence is somehow directly caused by the accused. [43]


As observed earlier, the 2003 Act brings to the fore more problems and than solutions. At one level, the Act is commendable for it reinforces the test of relevancy. By making the rule of hearsay narrower than its previous form, the Courts will have to look at issues of relevancy and reliability. However, in defining the concept for this purpose, there are two main difficulties that emerge. The meaning of ‘matter stated’ as in S. 115(3) read with S. 114 makes scope for ambiguity very wide. On one hand, it is near –impossible for the Courts to determine what the purpose of the maker of any statement is and on the other, the operation of one clause can be circumvented by using the other (i.e. S. 115(a) and (b)). It would have been better if the Act unequivocally expressed in one clause what circumstances would qualify as hearsay.

On the issue of reconciliation with Article 6, though there are safeguards entrenched in the 2003 Act, they do not specifically work in favor of protection of the accused, which is mandated by ECHR. There is no concurrence of views on the question of sole/decisive evidence being hearsay. It is submitted that adopting a strict rule or a total abolition of the sole/decisive evidence rule would not serve the purpose. Intelligible reasons need to back convictions on the basis of hearsay, as laid down in Al-Khawaja. Till the judicial courts reconcile the Horncastle-Al-Khawaja debate, it is imperative to adopt temporary measures to cushion out absence of witnesses from trials, such as pre-trial questioning of witnesses who are vulnerable etc. [44]

Annotated Bibliography


Adrian Keane, Modern Law of Evidence, (New York: Oxford University Press, 2006).

Chapter 10 of this book lays down the background, rationale behind the rule and leads into the 2003 Act. The 2003 Act has been fully examined by the author. Part C dealing with Implied Assertions has been referred to in the course of the paper. Adrian Keane argues that S. 115(3) by defining ‘matter stated’ has modified the law significantly.

Cross & Tapper On Evidence, (United Kingdom: LexisNexis Butterworths, 10th end., 2004).

Chapter XIV analyses in detail the working of the hearsay rule in criminal proceedings. The fundamentals of the rule have been thoroughly explained with illustrations.

Ian Dennis, The Law of Evidence, (London: Sweet & Maxwell, 3rd edn., 2007).

In Chapter XIV of this book analyses the concept of hearsay both prior to 2003 and after 2003, thereby giving a comparative perspective.

J.R. Spencer, Hearsay in Criminal Proceedings, (Oregon: Hart Publishing, 2008).

Having worked on the Consultation Paper for the Law Commission, J.R. Spencer gives an insider’s view of the evolution of the 2003 Act and its implications. A specific chapter has been devoted for an analysis of the issue of clash with Article 6, ECHR, which has been used in the paper.


1. J.R. Spencer, Hearsay, Relevance and Implied Assertions, 52(1), The Cambridge Law Journal, 1993.

After examining the arguments and the three-levelled (1. Hearsay. 2. Relevance. 3. Scope for fabrication) decision in Kearley, the author proceeds to examine the justification for the exclusionary rules. J.R. Spencer argues that it is not always true, as was claimed by the majority in Kearley, that the basis for the exclusion of hearsay evidence is the protection of the accused. It works both for and against the accused. He says that the present (as on 1993) rules of hearsay lead to unexpected results such as convicting the innocent and acquitting the guilty. He points out the irony in the process: out-of-court statements in the form of confessions are admissible, and an exception to hearsay, whereas an out-of-court statement about innocence is inadmissible.

2. Stuart Wallace, The Empire Strikes Back: Hearsay rules in Common Law Legal Systems and the Jurisprudence of the European Court of Human Rights, 4, European Human Rights Law Review, 2010, 408-418.

This article throws light on the issue of the rights under Article 6(3)(d) in the context of the Criminal Justice Act, 2003 and analyses, by examination of case-law in domestic courts and the European Court of Human Rights. Arriving at a contrast between the decisions of the two Courts, the article suggests that the burden remains on the Strasbourg Court to clarify its own position. The author argues against the sole/decisive evidence rule as it has several negative side-effects.

3. D. C. Ormerod, Hearsay: A Case comment, Criminal Law Review, 2006, 647-651.

D. C. Ormerod provides an analysis of the decision of the Court of Appeal in the case of R v. Sukadeve Singh, (2006) EWCA Crim 660. He contextualises the debate over applicability of the hearsay rule to implied assertions by giving instances of several circumstances which lead confusion. Comparing the decision in Singh to Kearley, he holds that the decision that the 2003 Act fully abolished the common law rule and the decision in Kearley is sound because otherwise there then would have been multiple sources of hearsay, one from statue, one from outside etc. He, however, points out the problems in practically applying S. 115(3) as inferences can always be made. Further sub-clauses (a) and (b) work against each other in certain peculiar circumstances, thereby frustrating the scheme of the Act.

4. J. R. Spencer, Hearsay Reform: The Train Hits The Buffers At Strasbourg, A Case Comment, 68(2), Cambridge Law Review, 2009, 258-261.

The case of Al-Khawaja & Tahery v. United Kingdom, (2009) 49 E.H.R.R. 1, decided by the European Court of Human Rights is analysed in this article. The 2003 Act seems to contradict the obligations under the ECHR, the interpretation of the latter by the Strasbourg has been very wide thereby questioning the validity of the Act. In the UK, the interpretation of the Article is instrumental in the sense that its purpose is to prevent baseless convictions etc. Safeguards were seen as adequate cushion against violation of Article 6, which came to be rejected in the case of Al-Khawaja. J. R. Spencer argues that the suggestion of pre-trial examination, at least of those witnesses that the Court finds to be vulnerable, is sound and deserves to be incorporated in the Act.

5. Ed, Hearsay evidence and Article 6, 5, Criminal Law Review, 2009, 311-312.

The editorial argues that admission of hearsay evidence on the basis of doing justice to the victim, or the inherent quality of the evidence cannot succeed. But this does not mean that hearsay evidence always requires other evidences as corroboration in order to be used. The case of Al-Khawaja recognised certain special circumstances where the admission of hearsay even as sole evidence would be justified. There are 3 classes: where the accused causes the absence of the witness, where the evidence is the previous statements of the witness, and where the statements not made for the purposes of investigation.

6. Marny Requa, Absent Witnesses and the UK Supreme Court: Judicial Deferene as Judicial Dialogue, 14(3), International Journal of Evidence and Proof, 2010, 208-231.

This article examines the clash between the hearsay rule (as codified in the 2003 Act) and the rights of the accused guaranteed under Article 6 of ECHR. This is dealt with in light of the recent clash of judgements delivered by the European Court of Human Rights in Al-Khawaja and the UK Supreme Court in R v. Horncastle. The latter was backed a sense of over-confidence in the 2003 Act and thus resorted to its own diluted interpretation of the Art

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