In law, the origins of the rule of hearsay can be traced

back to the trial of Sir Walter Raleigh in 1603, who was found
guilty of high treason on the basis of testimony that someone
had overheard someone else say they heard Raleigh would slit
the King's throat. The miscarriage of justice in that case made
English jurists to develop a hard and fast rule against evidence
of hearsay. Put more simply, it is evidence that aims to
establish the existence of a fact not through the witnesss firsthand knowledge, but through what a third party had stated out
of court. The rule against the admissibility of hearsay evidence
has traditionally been regarded as one of the defining features
of Anglo-American trial. However, such statements whether in
oral or written form, were inadmissible at common law unless
they fell within a common law or statutory exception. This is
clearly when Per Lord Havers in R v Sharp held that, any
assertion than one made by a person while giving oral evidence
in the proceedings, was inadmissible if tendered as evidence of
the fact asserted.
Recently, hearsay evidence has been given many
definition by parliament and courts. In criminal cases, under
s114 and s115 CJA 2003, an evidence must be a statement not
made in oral evidence in proceeding, in evidence of any matter
stated in order to come within the hearsay rule. The definitions
in s115 of the terms used in s114 has the effect of narrowing
the latter to only statements, whose makers had the purpose of
the conditions set out in either 115(3)(a) or (b). This implies
that if the purpose of the maker is not to assert or cause the
other party to believe or act, it falls out of the purview of the
exclusionary rule. In Leonard, for example, as the purpose of
the maker and the party adducing evidence do not coincide,
there is no hearsay.
Since the new provision of hearsay evidence rule in CJA
2003 finally came into force, it is widely believed that the trend
of hearsay rule began with excluded hearsay, but set up
exceptions of hearsay, restricted the exceptions and to
extended the exceptions. The first exception which make the
hearsay evidence become admissible is s116, when the maker
of the statement is unavailable. Under s116, Unavailability is

given an extremely broad definition. Beyond the familiar

categories of deceased, physically or mentally unfit, beyond the
reach of a summons, and not capable of being located, is added
a declarant fearful of testifying. Multiple hearsay could also be
admitted under s116 subject to the requirement under s121,
that is where all the parties to the proceedings so agree (s121)
(1)(b), or where the court is satisfied that the value of the
evidence, taking into account its reliability, is so high that the
interest of justice require the later statement to be admissible
for that purpose, s121(1)(c).
However, in common law, it should be stressed that not all
prior out of court statement would necessarily infringe the
hearsay rule. A mechanism for determining the admissibility of
statements that gained broader acceptance was proposed, with
substantial clarity, by the Privy Council, through a consideration
of the purpose for which the statement is to be admitted. In
Subramanian v Public Prosecutor it was held that, there will
be a hearsay when the prior out of court statement is adduced
for the purpose of proving the truth of the facts stated therein.
While it is not hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the statement, but
the fact that it was made. Thus, in Woodhouse v Hall,
policemen saying they were offered services was held to be
admissible as the relevant issue was not the content of the
statement, but the fact that offers of sexual services were
actually made.
The common law rule against hearsay operated to exclude
assertions made out of Court which were used as evidence of
the matter it contained. A question arises as to what kind of
assertions the rule applies against. It is in this context that the
concept of implied assertions gains significance. The issue is
whether the rule would apply against those matters that could
be inferred from express statements, where the contents of the
latter per se are not in issue. The answer to this came in the
case of Wright v Doe d Tatham where the Court reasoned
that when one deems an implied assertion to be an express
statement and the later would have been excluded, in such
cases, it became imperative to extend the hearsay rule against

such assertions as well. Besides, in R v Kearley, it is to be

noted that the calls received were requests for drugs and those
were being used by the prosecution to imply that the person
was actually a drug seller. This implied assertion also treated as
hearsay at common law and thus inadmissible.
The Law Commission Report which recommended
statutory codification of the common law rule of hearsay, for
purposes of clarity and consistency, considered the
abovementioned criticisms levelled against Kearley. CJA 2003,
which was largely based on the recommendations, aimed inter
alia to overturn the ruling in Kearley. Though the exceptions
to the rule retained largely the same form in the statute as in
common law, the rule itself has been altered in terms of what
qualifies as hearsay evidence. Under CJA 2003, the implied
assertion in Kearley now will be an admissible hearsay. Besides,
the hearsay rule have become more flexible than common law
which strictly made the hearsay evidence to be inadmissible.
Prior to the advances and changes introduced by CJA2003,
a witness back then could not give testimony about what he
heard from others or submit any form of evidence in a written
form rather than to attend the hearing. This can be found in the
CJA 2003 under s. 117, the document containing the statement
was created or received by a person in the course of a trade,
business, profession or other occupation, the person who
supplied the information contained in the statement had
personal knowledge or the matters dealt with. This means if
the documentary hearsay can fulfil the three element which
stated in s117, it will be admissible. Most can be admitted if the
person has first-hand knowledge of where the information was
obtained.
In Maher v DPP, accused had collide with the vehicle and
driven off. These were observe by a passer-by, who recorded
his registration on a slip and left it at the damaged vehicle. The
injured party contacted the police, who took a note of
registration and charged the defendant. The court held that the
trial judge had improperly admitted the evidence under s117,
since the owner of the damaged vehicle had not received the
information in the course of business. There is a question that is

there any different if Maher is under common law? Under

common law, it will be held that the document adduced is to
prove the truth of the facts, thus it is a hearsay and is
inadmissible.
Moreover, to prevent justice, there should be an
inclusionary discretion to render admissible reliable hearsay
which would not otherwise be admitted. It was believed that
without such a safety-valve, it proposed reform will be too
rigid. It therefore held that a statement should be admitted if its
probative value is such that the interest of justice require to be
admissible. The inclusionary discretion in CJA 2003 has been
cast more broadly and therefore relaxes the hearsay rule to a
greater degree. Under s114(1)(d), it will be recalled, a
statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if the court is
satisfied that it is in the interest of justice for it to admissible.
Prior to CJA 2003, in R v Sparks, the defendant was
accused of assaulting a 3 year old girl, and the evidence where
the girl had told her mother it was a coloured man was held
to be inadmissible hearsay. While post CJA 2003, in R v J(S),
the facts were somewhat similar to Sparks, it will be
inadmissible if it is under s116(2) due to the reason of the
statement made by the child is not competent as she is too
small. But this case, due to the availability of the safety-valve
found in s114(1)(d), the evidence of what a 2 and half year old
child had said to her mother concerning the defendants action,
was admissible. This would not have been possible in pre CJA
2003. This provision is open to use by both prosecution and
defence and also can be used by multiple hearsay under
s121(1)(c). A court will only interfere with a trial judges
decision under s121(1)(c) if it falls outside the range of
reasonable decision.
The CJAs design is to send a clear message that, subject
to the necessary safeguards, relevant evidence should be
admitted where that is in the interests of justice. The goals are
to simplify procedure and discard rigid rules in favor of judicial

discretion. Besides the interest of justice, the other provisions

of CJA like s114, s115 and s116 also made the hearsay rule
more flexible than the very strict common law. Oddly enough,
however, many of the common law exceptions are preserved
in what has been called rag bag list. The hearsay rule and
the extent of its authority must be reconsidered in light of
specific provisions of the CJA 2003. It expressly states that
certain categories of hearsay evidence may be admissible,
including the res gestae exception and the admission of
hearsay statements in the interests of justice.
Despite the benefits brought by CJA 2003, it seems to be
unnecessary to reserve the res gestae as there are the other
provisions introduced by CJA 2003 which involves more than
enough of discretion to the court when dealing with the hearsay
evidence. Firstly, even where a statement in a documentary
record meets the condition in s117, evidence will be excluded if
considered unreliable. S117(6) and (7) confers a discretion for
the court to direct that a statement shall not be admissible if
there is reason to doubts its reliability on the basis of its
contents, source of information, mode of supply or
circumstances of creation or reception.
There is also a limited form of admissibility if the reason
for non-availability to give oral evidence is through fear, section
116(2)(e). In cases where the witness does not give oral
evidence through fear (or does not continue to give such
evidence), leave of the court is required if the court considers
that the statement ought to be admitted in the interest of
justice, having regard to the factors set out in s116(4). It is for
the party seeking to admit the evidence to show that it should
be admitted in the interest of justice, a test which involves
consideration of fairness both to the defence and to the
prosecution. In R v Patel, it was held that the standard of proof
will presumably be the one which is relevant to the party
seeking to admit the evidence.
Besides, under s125, in a trial before judge and jury the
judge has the power to direct an acquittal or discharge the jury
if after the close of the prosecution case he considers that the
case is based wholly or partly on a hearsay statement and that

statement is so unconvincing that, considering its importance

to the case against the defendant, his conviction would be
unsafe. This provision only applies to jury trials on the basis
that in these circumstances Magistrates would be bound to
acquit. While under s126, the judge is also given the authority
to exclude unreliable hearsay, or hearsay that would result in a
waste of court time.
As a conclusion, CJA 2003 to the rule of hearsay has
received much criticism in recent times. Berch criticised CJA
2003 as neither clear nor certain. However, it is covered
extensively throughout the years going back from the Criminal
Justice Act 1988 to the more recent provisions in the 2003 Act
which have been refined to cover all aspects of admitting
hearsay evidence into the court room to ensure that important
material which is needed to prove a fact in issue at court is
admitted but through a way which the defence and prosecution
both agree on in order for them to receive a fair treatment and
essentially progress onto an unbiased charge. According to
Roberts and Zuckerman, CJA 2003 creates a judicial discretion
jamboree.