Introduction
The rule against hearsay evidence is a long-standing feature of the common law of England and Wales, designed to prevent the admission of testimony that cannot be tested by cross-examination. Traditionally, the law adopted a strict exclusionary approach, fearing the inherent dangers of second-hand statements. The Criminal Justice Act 2003 (CJA 2003) significantly reformed this area, moving towards a more inclusionary system where the primary focus is on whether the evidence is sufficiently reliable to be considered by the jury. One of the most significant reforms was the creation of a residual discretion to admit hearsay where it is in the "interests of justice" under section 114(1)(d). This essay will argue that while the broad, discretionary nature of the "interests of justice" test does create a risk of judges admitting evidence based on its surface plausibility—its "believability"—this risk is substantially controlled. The statutory framework, particularly the checklist of factors in section 114(2), alongside robust appellate court guidance and other judicial safeguards, directs the court to focus on demonstrable markers of reliability, ensuring that the test does not simply become a gateway for convincing but untrustworthy stories.
The CJA 2003 and the Modern Approach to Hearsay
Hearsay is defined in the CJA 2003 as a statement "not made in oral evidence in the proceedings" which is adduced "as evidence of any matter stated" (s.114(1) read with s.115). The traditional justification for excluding such evidence was its potential unreliability. The maker of the statement is not under oath, their demeanour cannot be assessed by the jury, and crucially, their account cannot be challenged through cross-examination (Keane and McKeown, 2022). The pre-CJA 2003 law, typified by the strictness seen in cases like R v Sharp [1988] 1 WLR 7, was widely criticised for being overly rigid and complex, often excluding evidence that was clearly valuable and reliable.
The CJA 2003 sought to remedy this by creating a new, more flexible regime. It preserves the general rule that hearsay is inadmissible but provides four key gateways through which it can be admitted (s.114(1)): (a) where a statutory provision makes it admissible; (b) where a common law rule preserved by the Act makes it admissible; (c) where all parties to the proceedings agree to it being admissible; or (d) where the court is satisfied that it is in the interests of justice for it to be admissible.
The first three gateways are relatively clear-cut. It is the fourth, the "interests of justice" test, that has attracted the most debate. It was intended to act as a "safety valve" to ensure that cogent evidence is not lost due to technical rules (Law Commission, 1997). However, its breadth gives rise to the concern posed by the question: that a court might admit a statement because it sounds like a believable story, rather than because it has been proven to be reliable.
The "Interests of Justice" Test: Believability or Reliability?
Section 114(1)(d) grants the court a discretionary power to admit hearsay if it is in the interests of justice to do so. On its own, this phrase is very wide and could be interpreted in many ways. A judge, faced with a compelling narrative that fits neatly with the prosecution or defence case, might be tempted to admit it on the grounds that it is "believable" and helps paint a full picture for the jury. This is the core of the risk.
However, Parliament did not leave this discretion at large. Section 114(2) provides a non-exhaustive list of nine factors that the court must have regard to when considering the interests of justice. These factors are crucial as they are designed to steer the judicial focus away from mere plausibility and towards a more rigorous assessment of reliability. The factors include:
- (a) The statement’s probative value;
- (b) What other evidence could be given on the matter;
- (c) The importance of the evidence to the case;
- (d) The circumstances in which the statement was made;
- (e) The reliability of the statement’s maker;
- (f) The reliability of the evidence of the making of the statement;
- (g) Whether oral evidence can be given and, if not, why not;
- (h) The difficulty of challenging the statement; and
- (i) The prejudice to the party facing the statement.
Several of these factors directly target reliability over simple believability. Factors (d), (e), and (f) are explicit checks on reliability. Factor (d) requires the court to examine the context of the statement—was it made under pressure, in exchange for a reward, or in circumstances that suggest it might be true? Factor (e) looks at the credibility of the person who made the statement, for example, their motive to lie or their reputation for truthfulness. Factor (f) questions whether the witness reporting the hearsay statement is themselves reliable. These inquiries go far beyond asking if the story "makes sense." They require the court to analyse the source and context of the evidence, which are the fundamental components of assessing its reliability.
Judicial Interpretation and Application
The judiciary has been cautious in its application of s.114(1)(d), conscious that it should not become a tool for circumventing the other, more specific, exceptions. In R v Taylor [2006] EWCA Crim 2609, the Court of Appeal emphasised that the provision should be used "sparingly" and that its existence did not mean that the "floodgates" for hearsay had been opened. This initial caution indicates an awareness of the need to maintain a high threshold for admission.
More significantly, the Court of Appeal in R v Riat [2012] EWCA Crim 1509 provided authoritative guidance on the correct approach. The court stressed that judges must apply a structured analysis, explicitly considering the s.114(2) factors. It held that the "interests of justice" test was not an "open-ended invitation to admit any hearsay evidence that might seem useful." Instead, the court should identify the specific reason why the interests of justice might favour admission and then "test the reliability of the evidence" by reference to the statutory factors. The judgment in Riat demonstrates a clear judicial commitment to ensuring that s.114(1)(d) is a reliability-based test. It directly counters the idea that a statement’s surface-level believability is sufficient. The court is required to actively investigate why the evidence is trustworthy, not just whether it appears to be.
The Role of Wider Safeguards
Even if a judge were to err and admit evidence under s.114(1)(d) based on its believability rather than proven reliability, the CJA 2003 contains further safeguards to prevent an unjust outcome. These provisions operate as a crucial backstop.
First, section 124 allows a party to introduce evidence relating to the credibility of the maker of a hearsay statement, just as if they were a witness in court. This allows the defence to attack the character or consistency of an absent accuser, mitigating the prejudice caused by the inability to cross-examine them directly.
Second, section 126 gives the court a specific power to exclude hearsay evidence if its probative value is substantially outweighed by the danger of unfair prejudice. This mirrors the general exclusionary power under section 78 of the Police and Criminal Evidence Act 1984 (PACE). Therefore, even if a piece of hearsay is technically admissible under s.114(1)(d), a judge can still exclude it if its admission would make the trial unfair, for example, by distracting the jury or being given undue weight.
Most importantly, section 125 provides a power for the judge to stop a trial where a conviction would be based wholly or partly on hearsay evidence that is so unconvincing that the conviction would be unsafe. This is a powerful final check against wrongful convictions based on unreliable hearsay. It ensures that even if questionable evidence has been admitted, the judge must step in if the overall strength of the case is too weak. Together, these safeguards create a system where the admission of hearsay under s.114(1)(d) is just the first step in a process that continually assesses fairness and reliability.
Conclusion
In conclusion, the question of whether the "interests of justice" test under section 114(1)(d) risks admitting hearsay based on believability rather than reliability is a valid one. The discretionary and open-textured language of the provision inherently carries this risk. A believable story can be persuasive, and a judge could, in theory, be swayed by a compelling narrative without sufficient regard for its evidential basis.
However, the legal framework is structured to strongly resist this risk. The mandatory checklist in section 114(2) forces a disciplined and analytical approach, directing the court's attention to specific indicators of reliability, such as the circumstances of the statement's creation and the credibility of its maker. This statutory guidance has been robustly reinforced by the Court of Appeal, most notably in R v Riat, which demands a structured evaluation of reliability. Furthermore, the wider statutory safeguards, including the ability to challenge credibility (s.124), the power to exclude for unfairness (s.126), and the ultimate power to stop a case based on unconvincing hearsay (s.125), create a comprehensive safety net. While the risk can never be completely eliminated from a discretionary test, the CJA 2003 has provided the courts with the tools and guidance necessary to ensure that the "interests of justice" are primarily served by admitting hearsay that is not just believable, but demonstrably reliable.
References
Keane, A. and McKeown, P. (2022) The Modern Law of Evidence. 14th ed. Oxford University Press.
Law Commission (1997) Evidence in Criminal Proceedings: Hearsay and Related Topics. (Law Com No 245). The Stationery Office.
R v Riat [2012] EWCA Crim 1509.
R v Sharp [1988] 1 WLR 7.
R v Taylor [2006] EWCA Crim 2609.
Legislation
Criminal Justice Act 2003.
Police and Criminal Evidence Act 1984.
