SQE1 Criminal Litigation · Page 6 of 9

Section 118 and res gestae

Hearsay: Gateways, Procedure and Safety

Section 118 preserves the listed common-law hearsay rules and abolishes the other common-law exceptions. The list covers public information; reputation as to character; reputation or family tradition; res gestae; confessions and mixed statements; admissions by agents; statements in furtherance of a common enterprise; and an expert's use of the general body of expertise. The headings identify families of rules, not permission to admit every statement about those subjects. For example, a retrospective accusation by one participant is not automatically a statement made in furtherance of a common enterprise.

Use Confessions and Exclusion of Prosecution Evidence for confession controls, and the character and witnesses chapters for their specialist conditions. Section 118 does not turn a maker's confession into prosecution evidence against every co-accused, remove PACE protections, or make an otherwise impermissible character assertion admissible.

is the retained name for three types of closely connected statement in s 118(1), paragraph 4:

A person was so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.
The statement accompanied an act which can be properly evaluated as evidence only when considered with the statement.
The statement related to a physical sensation or mental state, such as intention or emotion.

Concoction means inventing an account; distortion means materially reshaping it. The first category is not simply a rule for statements made quickly. The second concerns words needed to evaluate the accompanying act. The third concerns the maker's sensation or state of mind, not an unrestricted route for proving every historical event the maker attributes it to.

The authority: . A badly wounded man named attackers to police shortly after being stabbed; he later died. The challenge concerned whether his statement could be admitted despite his absence. The House of Lords upheld its admission. Lord Ackner's analysis asks whether the circumstances permit the possibility of concoction or distortion to be disregarded: [1987] AC 281, 300–301; [1987] 1 All ER 513, 520–521. The startling event, its continuing effect, spontaneity, intervening reflection and any particular motive to fabricate matter. Exact simultaneity is unnecessary, and an answer to a question is not automatically excluded. Special features creating a risk of error also require the judge's attention. The case therefore does not mean that distress guarantees accuracy or that every error issue belongs only to the jury.

Admission and error must both be addressed. Ordinary human fallibility may remain a matter of weight after admission. But a particular difficulty with identification, impaired perception, intoxication or another special feature may need consideration in the judge's admissibility assessment. Explain its actual effect rather than saying either “any error risk excludes” or “all error risks concern weight only”. Even after the statement is admitted, the fact-finder must decide whether the identification or description was accurate.

There is no s 116 unavailability condition attached to the res gestae route itself. A spontaneous statement does not cease to qualify merely because the maker can testify. Equally, the route does not justify an administrative decision to avoid calling an available witness without considering fairness and the value of oral evidence. The question of the gateway and the question of a fair trial remain separate.

An emergency call capable of being res gestae

Seconds after a stabbing, a caller is recorded gasping and crying: “Luca has just stabbed me; he is still outside.” Alarms and immediate efforts to obtain help can be heard. The judge finds that the attack still dominated the caller's mind and that, in the proved circumstances, the possibility of concoction or distortion can be disregarded.

The words are hearsay when used to identify Luca as the attacker, but the emotional-overpowering route can admit them. The judge must still address any special identification or error feature raised by the evidence. The defence can also challenge what the caller saw, the voice evidence, inconsistencies and the weight to be attached. If the caller does not testify, the inability to cross-examine must be addressed in the fairness assessment.

Change the facts: after a calm discussion with several friends, the caller records a considered account an hour later. The court cannot assume that the event still excluded reflective invention simply because the speaker remains upset. Other gateways may need consideration.

The other forms in practice. Words accompanying a transfer of an object may be necessary to understand whether the act was a return, a gift or something else. First check whether they are legally operative words and therefore non-hearsay for the proposed use; only then ask whether the accompanying-act exception is needed. “My chest hurts now” may evidence the speaker's current sensation. It does not automatically prove the separate assertion “because Daniel poisoned me yesterday”. Isolate the matter each part is used to prove.

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