Hearsay Evidence (Part 2)

Hearsay is any statement made on an earlier out-of-court occasion which is being adduced in court to prove the truth of facts asserted in that earlier out of court statement.

S9 CJA 1967 is the exception to the rule of hearsay. S9 permits a witness written statement to be read to the court without the witness attending trial where:

• The statement is signed by the maker; and
• Contains a declaration in specified words as to the statement of truth.
• The statement has been served on the opposing party
• Within 7 days the opposing party has not objected to the statement being submitted as hearsay.

If however objection is taken the court has no power to over-rule. Therefore the statement is usually agreed upon by the opposing side as there will be no opportunity to cross-examine.

S114 CJA 2003 provides ‘a statement not made in oral evidence in proceedings is admissible as evidence of any matter stated, if it comes within one of the four exceptions laid out in s114 (1)(a)-(d).

The Unavailable witness (s116) is admissible where:

• The person could have given oral evidence if h attended court.
• The person who made the statement is identified to the courts satisfaction.
• The person making the statement had the requisite capability.

S116 CJA 2003 permits a statement to be admitted where the witness is unable to attend court because:

• The witness is dead/unfit due to bodily or mental condition (s116 (2)(a) and (b)).
• Witness is outside the UK and not reasonably practical for him to attend (s116 (2)(c)).
• Witness can not be found (s116(2) (d)).

That through fear the witness does not give evidence. Under s116 it is immaterial if the hearsay statement is made orally or written. Once the conditions have been met the evidence is admitted.