The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.
Section 114 of the Criminal Justice Act 2003 defines hearsay evidence as a statement not made in oral evidence in criminal proceedings and admissible as evidence of any matter stated but only if certain conditions are met, specifically where: It is in the interests of justice to admit it (see section 114(1)(d)) The witness cannot attend (see section 116) The evidence is in a document (see section 117) The evidence is multiple hearsay (see section 121)
The meaning of "statements" and "matter stated" is explained in section 115 of the 2003 Act. "Oral evidence" is defined in section 134(1) of that Act.
History of the rule
The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in Wright v Doe d Tatham. The technical nature of the discussion in Doe d Tatham inhibited much reasoned progress of the law, whose progress (in the form of judicial capacity to reform it) ended not long afterwards. Later attempts to reform through the common law it got little further, with Lord Reid in Myers v DPP saying
There was some statutory reform in the nineteenth century (see Bankers' Books Evidence Act 1879), and later the Evidence Act 1938 made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid and Lord Diplock.
The Law Commission and Supreme Court committee provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972.
The Criminal Justice Act 2003 ("2003 Act"), which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the Law Commission in Evidence in Criminal Proceedings: Hearsay and Related Topics (LC245), published on 19 June 1997. Previously, the Criminal Justice Act 1988 carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act.
Reasoning behind the rule
The reasoning behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. Direct evidence is given under oath (with potential criminal liability for perjury if the testimony is subsequently proven false), in the presence of the court and jury, and may be cross-examined. In adducing direct evidence (that is, recollection of a witness in court) the court considers how the witness would have perceived the event at the time, potential ambiguities, and the witness's sincerity. These can be tested in cross-examination.
A statement reported in hearsay is not generally subject to these safeguards. The person making the original statement was not testifying under oath, and was not subject to cross-examination. Even assuming that the witness reporting the original statement does so completely truthfully, it remains possible that the person making the original statement was lying, joking, or exaggerating. It is also possible that the witness testifying at trial misunderstood the original statement. The court has no way to assess these possibilities, except via the testimony of the witness reporting the hearsay.
Although the hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence:
The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has led to misunderstandings about the nature of hearsay.
A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the European Convention on Human Rights (articles 6(1) and 6(3)(d)) and, in the United States the sixth amendment of its Constitution (its principles tracing back to Raleigh's Trial).
Civil proceedings
Hearsay is generally admissible in civil proceedings. This is one area in which English law differs dramatically from American law; under the Federal Rules of Evidence, used in U.S. federal courts and followed practically verbatim in almost all states, hearsay is inadmissible in both criminal and civil trials barring a recognised exception.