SQE1 Criminal Litigation · Page 7 of 9

Multiple hearsay: analyse every layer under section 121

Hearsay: Gateways, Procedure and Safety

occurs when a hearsay statement is used to prove that an earlier hearsay statement was made. For example, a police statement says that a witness heard a friend describe an assault, and the friend is not giving that description orally at trial. There is a problem with transmitting the earlier assertion as well as with the truth of the assertion itself.

Draw the chain before choosing provisions:

Person who perceived and asserted the fact → person who heard that assertion → later recorder or recipient → evidence produced at trial.

For each step, identify the maker, the matter stated and the purpose of its use. Separate a live witness's own observation from their repetition of another person's assertion. If Mina gives live evidence that she herself saw a red car, that observation is not hearsay. If Mina gives live evidence that Carl told her he saw it, Carl's assertion is one hearsay layer. If the court instead receives Wes's written account of what Mina said Carl said, further hearsay layers are present.

Section 121(1) imposes an additional restriction. A later hearsay statement cannot be used to prove that an earlier hearsay statement was made unless:

Either statement is admissible under s 117, s 119 or s 120; or
All parties agree; or
The court considers the evidence's value, taking account of the statements' apparent reliability, so high that the interests of justice require admission of the later statement for that purpose.

The final route is s 121(1)(c). Its requirement is more demanding than saying that the evidence is useful or that admission would generally be in the interests of justice. The word require matters. Identify the reliability of the earlier statement and of its transmission, not just the credibility of the last person in the chain. Section 121(2) defines the hearsay statements to which this restriction applies.

An ordinary route under s 114 must still support the relevant truth-use. Section 121 does not abolish other conditions. A s 116 gateway for the dead recorder's statement is not enough to make an unidentified original observer's allegation evidence of the event. Conversely, the express s 121(1)(a) limb can accommodate a proper business-record or previous-statement route; do not demand the exceptional s 121(1)(c) test where paragraph (a) already applies. Map which provision does what at each relevant layer.

Section 116 does not admit an embedded chain

Wes's statement says, “Mina told me that Carl said he saw Darius drive the stolen car.” Wes later dies. Mina cannot recall when or where Carl supposedly spoke. Carl is identified only by a first name. There is no recording, qualifying business record, agreement or independent support.

Wes's death may establish a s 116 route for his own account, with the other conditions satisfied. It does not establish that Carl saw Darius driving. The use of Wes's account to prove the earlier retellings raises s 121. Neither statement is shown to come within ss 117, 119 or 120; there is no agreement; and the poor provenance and reliability cannot on these facts satisfy the “value so high” requirement. The outer gateway does not admit the ultimate accusation.

Compare a properly proved routine occupational chain: an observing employee supplies an entry through other employees who receive it in their work, and s 117's conditions are all met. Section 121(1)(a) expressly recognises that route. The decisive difference is a proved qualifying chain, not the mere presence of a company logo.

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