Hearsay Evidence in UK Law

I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation.

However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, 586D-H, per Lord Nicholls of Birkenhead. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.

As this court explained in Taylor [2006] EWCA Crim 260, section 114(2) does not mean that the Judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the Judge must stand back and ask whether it is in the interests of justice that the statement be admitted.

After all, the Chief Officer is the person to give the decision in the first instance. Under section 34 he may refuse if he is "satisfied" of what is said there. It is plain that he can take into account any information that he thinks fit. If he refuses and the applicant appeals to the Crown Court, then the Crown Court must see whether or not the Chief Officer was right in refusing.

It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness' interview, that person cannot be asked a single exploratory or challenging question about what is said.

This court was far from laying down any general rule that hearsay evidence has to be shown (or "demonstrated") to be reliable before it can be admitted, or before it can be left to the jury.

It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind.