SQE1 Criminal Litigation · Page 2 of 9

Identify the statement, maker, matter stated and purpose

Hearsay: Gateways, Procedure and Safety

Under CJA 2003 s 115(2), a statement is a representation of fact or opinion made by a person, by whatever means. Oral words, writing, an electronic message, a meaningful gesture, a sketch or a photofit can qualify. There need not be a signed witness statement. A witness who gives oral evidence that someone else said something does not thereby convert the other person's assertion into that person's oral evidence in the proceedings.

A has a more precise meaning. Under s 115(3), one of the maker's apparent purposes must have been to cause another person to believe the matter, or to cause another person to act, or a machine to operate, on the basis that the matter was true. It need not have been the maker's only or main purpose. The court identifies the purpose from the communication in its setting, not merely from a label attached by the party seeking to use it.

A , for the present analysis, is a statement not made in oral evidence in these proceedings which is tendered as evidence of a matter stated. A witness's previous account can therefore be hearsay even though that witness attends the trial: a specific route may make the previous account evidence of its contents. Conversely, an absent person's words may be non-hearsay when their truth is not the relevant use.

The practical method in . The judgment considered several appeals involving mobile-phone messages. The Twist and Boothman cases involved incoming requests, or alleged requests, for drugs; other appeals involved a request to deliver a gun and messages sent after an alleged sexual offence. That variety matters: the court was not creating a rule that all text messages are admissible or all requests are non-hearsay. Its approach is to identify the relevant fact to be proved, ask whether the communication states that fact, and, if so, ask whether the maker intended someone to believe it or act on it as true. The legal method is in [2011] EWCA Crim 1143, [17]–[18]; the different factual settings appear at [1]–[2].

Applying that method. A request such as “Can you bring two bags?” may be relevant circumstantial evidence of the recipient's activity without being an assertion intended to persuade the recipient that they are a drug supplier. Its meaning and surrounding facts still have to be proved. By contrast, “I saw Daniel put the stolen phone in his coat” expressly seeks belief in an observation. Repeating it to prove the concealment is hearsay. Do not decide by grammar alone: a question, warning or request can contain an intended assertion as well as a request for action.

Words can instead be relevant because they gave notice, affected the hearer, explain an action, or themselves performed an act, such as making a threat. The proposed non-hearsay use must matter to an issue in the case. “Background” is not a device for putting an untested accusation before the jury for its truth.

The same words, two different uses

An employee tells a manager, “The rear fire door is unlocked.” The manager immediately walks to the rear corridor.

To explain why the manager went to the corridor, it does not matter whether the door really was unlocked. The words may be non-hearsay evidence of their effect on the manager, provided that explanation is relevant.

To establish that the door was unlocked, the party relies on the truth of the employee's intended assertion. That use requires a hearsay gateway. The manager's accurate recollection of the conversation proves that the words were spoken; it does not prove the employee was right about the door.

A limiting direction can tell the jury that the words explain the manager's movement but are not evidence of the door's condition. It cannot make an irrelevant explanation relevant or cure covert reliance on the accusation as true.

Human statements and machines. An automatically generated measurement is not itself a representation made by a person merely because a computer stores it. But a person's entry in a database remains a human statement. A printout which calculates a result from human-supplied information raises the separate accuracy condition in s 129 where that information's accuracy is necessary to the representation's accuracy. Authentication, proper operation and hearsay are different questions. A machine does not cleanse a human assertion of its evidential problems.

Once hearsay is identified, choose a valid gateway, comply with procedure and consider credibility, exclusion and sufficiency separately. Authorities: CJA 2003 sections 114–115; .

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