The House here was marginalizing the element of contemporaneity which had previously been the feature of the res gestae test. The statement to the police had of course been made some time after the stabbing.

B was convicted of murder and appealed on the grounds that evidence should have been allowed that a third party, M, had spoken to others that a boy had been murdered before it was public knowledge. M was not called as a witness.

The House of Lords, taking a very narrow view of relevance, held that the evidence was irrelevant and hearsay. It was inadmissible and the conviction was upheld.
Arguably, such evidence could be admissible under s116 or s114 CJA 2003.

At the defendants’ trial for fraud, the prosecution was proposing to adduce a witness statement made by a resident of South Africa, who was related to one of the defendants. The witness was not willing to attend trial. The judge admitted the witness statement under s116(2)(c) CJA 2003 and refused to exercise his discretion to exclude it under s78 PACE. The court held that the expression ‘reasonably practicable’ in s116(2)(c) had to be judged based on the steps taken or not taken, by the party seeking to adduce the witness’s evidence. There had been insufficient explanation of the reasons for the witness’s refusal to attend, or to give evidence by video-link. The defendant’s appeal at the interlocutory stage was allowed.

The court here indicated the scope of the exclusionary discretion even where the evidence was admissible under the statutory provisions. It also indicated the use of s78 for prosecution hearsay evidence.

Keet was accused of having grossly overcharged an old woman for house repairs. By the time the case came to trial the householder had become demented and could not give evidence in person. The admission of her witness statement was contested.
In Cole’s case, the body of a woman who had committed suicide showed other injuries which were said to have been caused by the defendant. Before her death, the victim had told other people that the defendant had attacked her. The issue on appeal was whether their hearsay evidence could be used. The court held that there was no absolute rule that evidence of a statement could not be adduced unless a defendant had an opportunity to examine a witness.

In considering whether hearsay evidence should be admitted in a criminal trial, the only role of Art 6 ECHR was to determine whether the admission of the evidence was compatible with a fair trial. Hearsay evidence was not precluded by Art 6 even where it was the sole or decisive evidence against a defendant.

The case concerned four conjoined appeals, in all of which the convictions were based on the hearsay evidence of identifiable witnesses who did not testify. In the cases of H and B the witness had died and in the cases of M and C the witness was absent through fear. The defence argued that, following Al-Khawaja and Tahery v UK (2009), the convictions based solely or decisively on the evidence of absent witnesses were a violation of Art 6(3)(d) ECHR.

The Supreme Court rejected the reasoning in Al-Khawaja and Tahery v UK (2009) and upheld the convictions. The Human Rights Act (HRA) 1998 does not require English courts to apply the decisive or sole rule in relation to hearsay. The clash between the Supreme Court and the Strasbourg court in part arises from the fact that hearsay is more broadly defined in English law. The Strasbourg jurisprudence makes it clear that Art 6(3)(d) applies only to accusatory witness statements made to the investigative authorities. Hearsay under English law can embrace all pre-trial statements satisfying the definition in CJA 2003.

S was convicted of indecent assault in 1969 on an 8-year-old child, the daughter of his then neighbour. No complaint was made to the police at the time but in 2017 the complainant gave an interview to the police. She stated that she had complained to her mother at the time and that her mother (by then deceased) told her that S’s wife had said that S confessed. The transcript of the interview was shown to the defence for editing and was presented in evidence at trial. The prosecution did not follow the notice procedure for hearsay under CPR 20.2.(2). S appealed the conviction.

Allowing the appeal the Court stated that the correct procedure for hearsay had not been followed and that the silence of the defence could not be taken as consent to the admissibility of hearsay. The alleged confession was inadmissible multiple hearsay under s115 and s121 (1)(c) CJA 2003. S’s wife was available and compellable as a witness and the evidence was not admissible by agreement. The Court stated (para 60), ‘This was highly prejudicial evidence and, in the context in which it fell to be considered, had the capacity to act as confirmation of the guilt of the appellant. It should not have been admitted and the warnings given by the learned judge were, in our view, insufficient to remove the important prejudicial effect.’.

At S’s trial for assaulting a young girl the victim was too young to testify. The defence was not allowed to tender a statement she had made to her mother shortly after the offence. She had said, ‘It was a coloured boy.’ S was white. The PC upheld the judge’s ruling that the statement was inadmissible hearsay.

The rule against hearsay applies equally to defence and prosecution, and under the common law it was applied strictly. There was no judicial discretion to admit even arguably good quality evidence. The rule, if it applied, was inflexible.

S was convicted in British-held Malaya of having ammunition without lawful authority. He argued duress in his defence in that he had been threatened by terrorists. The appeal to the Privy Council turned on whether the alleged statements made by the terrorists to him should have been admitted or whether they were, as the trial court held, inadmissible hearsay. The PC held that they were not hearsay since the purpose of tendering them was not to suggest they were true or not but whether they were made. Appeal allowed.

This case illustrates the importance of the second aspect of the definition of hearsay. Even if a statement is made out of court it is only hearsay if it is tendered to suggest it is true or, as s114 CJA 2003 now puts it, is ‘admissible as evidence of any matter stated’. Here the purpose of putting evidence of the threats was simply to suggest that they had been made. The truth of their content was not in issue.

A woman who claimed she had been imprisoned, raped, and forced to work as a prostitute had made statements to others about her plight. The prosecution statements were held to have been properly admitted, either under s120(7) or s114(d), in a trial of her abductor. Appeal dismissed.

(i) Evidence may be admitted under s114(1)(d) even where the conditions for admissibility under s120 are not met.
(ii) Section 114 was compatible with Art 6 since the court had the power to exclude hearsay evidence under s126 and was under a duty to do so under HRA 1998 where its admissibility would infringe Art 6.
(iii) Since the hearsay provisions in CJA 2003 applied to prosecution and defence, there was equality of arms.