Evidence from the grave – is it admissible in a criminal trial?

In BOB and Ors v R [2024] EWCA 1494, the Court of Appeal was required to consider an appeal by the prosecution against a terminating ruling. That ruling was made a by a trial judge who ruled that two witness statements from witnesses who had died were inadmissible as hearsay evidence. Hearsay evidence is any evidence which is not given first hand about matters personally witnessed. Traditionally, hearsay evidence was not admissible in criminal trials save in exceptional circumstances.

However, the Criminal Justice Act 2003 changed that and introduced the statutory concept of the admissibility of hearsay evidence via various ‘gateways’. In this case, the Crown had sought to adduce the statements from the deceased witnesses (and consequently hearsay) but had seemingly failed to make appropriate disclosure of material relating the credibility of those witnesses. The trial judge considered that their evidence was unreliable and accordingly inadmissible and consequently he discharged the jury. The Court of Appeal were critical of his ruling and his conflation of issues from the ruling in a previous case (Riat & Ors v R. [2012] EWCA Crim 1509) and they overturned it albeit with a direction that the Crown make disclosure of the material which undermines the credibility of the witnesses. In so doing, it reformulated the appropriate test.

The general provision that evidence from a deceased person is admissible can be found in section 116 of the Act.  However, that is tempered by section 124 which allows for the introduction of any material which goes to the credibility of that evidence (or any matter which could have put in cross-examination with leave). The idea is that the defendant ought not to be in a worse position than he would be if the witnesses were giving evidence orally.  Where such evidence is admitted, there is a general provision in section 125 which requires the Court to acquit a defendant or discharge a jury where it considers that a conviction may be unsafe. Thus, there is an additional safeguard that such evidence must be under additional scrutiny from the trial judge who has power to intervene.  There is also a general discretion to exclude any such evidence contained in section 126. It is here that the Court of Appeal was critical of the steps taken by the judge in this case and let to the reformulation of the test.

The test that a Court must now adopt when considering the admission of hearsay evidence is as follows:

1. Is the court satisfied that the prosecution has adduced all relevant evidence, and disclosed all relevant unused material to enable the court to assess the extent to which the hearsay evidence is demonstrably reliable and, if not, the extent to which it can be safely assessed and tested? If not, should the court simply refuse the application or do the interests of justice require directions for a proper disclosure process?
2. Is there a specific statutory justification (or “gateway”) permitting the admission of hearsay evidence (section 116–118)?
3. What material is there which can help to test or assess the hearsay? This may be undermining evidence admitted under section 124, or other inconsistent evidence and it may also be independent dovetailing or supporting evidence. The court is required to make a judgment on the basis of all the evidence, having regard to the issues in the case and the importance of the hearsay to those issues.
4. Is there a specific “interests of justice” test at the admissibility stage?
5. If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (section 114(1)(d))?
6. Even if admissible, ought the evidence to be ruled inadmissible (section 78 of the Police and Criminal Evidence Act 1984 (PACE) and/or section 126 of the Criminal Justice Act 2003)?
7. If the evidence is admitted, then should the case subsequently be stopped under section 125? This safeguard should be considered in all cases where it applies, at the initiative of the court if the parties do not raise it. It will generally be best determined at the conclusion of all the evidence. This is reinforced by the fact that this is the stage when the judge is likely to have drafted legal directions and to be consulting counsel about them. In a case of this kind, where the prosecution seeks to prove an important and disputed fact by relying on hearsay, the judge is required to give a careful and tailored direction to assist the jury in deciding whether they can safely rely on the hearsay or not. Its sufficiency will be relevant to the safety of any resulting conviction and it will be helpful for the judge to have regard to it when carrying out the assessment required by section 125.

The extent to which hearsay evidence of this nature may be determinative will vary from case to case. Nevertheless, practitioners should be advised to be alive to the strong possibility that such evidence will be admitted and ensure that prosecution complies with its duties of disclosure so it may be properly tested and appropriate submissions may be made at the conclusion of the prosecution case.

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