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 which 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. 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 CJA2003, 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
CJA2003 finally came into force, it is widely believed that the
trend of hearsay rule began with excluded hearsay, but set up
exceptions of hearsay. The first exception 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 above
mentioned criticisms levelled against Kearley. CJA2003, 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 CJA2003, 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, which said that the if documentary
hearsay can fulfil the 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, 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. If 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 injustice, 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, defendant was accused

of assaulting a 3 year old girl, the evidence where the girl had
told her mother it was a coloured man was held to be
inadmissible hearsay. Post CJA2003, in R v J(S), which have
similar facts 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, due to the availability of
the safety-valve found in s114(1)(d), the evidence of what the
child 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.

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 favour of judicial
discretion. Besides the interest of justice, other provisions of
CJA 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 CJA2003. 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.
It seems to be unnecessary to reserve the res gestae as
CJA2003 have 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,
s116(2)(e). In cases where the witness does not give oral
evidence through fear, leave of 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.