The rule against hearsay

Section 1(2) of the Civil Evidence Act 1995 defi nes hearsay, for the purposes of that Act, as ‘a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated’. This defi nition is in effect mirrored in section 114(1) of the Criminal Justice Act 2003, which provides that ‘in criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated’. 1

Although it could be argued that a strict system of exclusionary rules and exceptions did not exist prior to the beginning of the 19th century by the end of the 17th century there appears to have been a recognition that the admission of hearsay evidence was generally undesirable. This view was often expressed by statements to the effect that hearsay could not be seen to be ‘evidence’ in the true sense of the word. 2 The principal reason for this is that hearsay evidence is thought to be

undesirable because the original statement made was not made on oath, and so the person making it was not then available for cross-examination. 3

There have been different approaches to the use of the rule against hearsay in civil and criminal proceedings. Section 1(1) of the Civil Evidence Act 1995 states that ‘in civil proceedings evidence shall not be excluded on the ground that it is hearsay’. In criminal proceedings the rule is outlined in Part 11 , Chapter 2 of the Criminal Justice Act 2003. This Act does not abolish the rule against hearsay. Instead, it defi nes the rule and codifi es it by preserving a number of existing common law exceptions. Section 114(1) of the Criminal Justice Act 2003 provides that:

Section 118(2) of the Criminal Justice Act 2003 Act provides that:

The effect of these provisions was to effectively abolish the common law hearsay rules, save those expressly preserved by section 118(1), and to create a new rule on the use of hearsay evidence. 4 The scope of this rule is best explained by considering the use of the words ‘statement’ and ‘a matter stated’ within the defi nition and the purpose for which evidence of an out-of-court statement is being adduced. It is the latter which generally results in the greatest degree of confusion.