# Hearsay evidence: statutory exceptions in criminal proceedings

> **Key takeaway:** Four gateways (CJA 2003 s.114(1)): statutory provision / preserved common law (s.118) / party agreement / interests of justice. Main unavailability gateway: s.116 (five conditions). Multiple hearsay: higher threshold (s.121). Article 6 compatibility: R v Horncastle [2009] UKSC 14.

- **Jurisdiction:** England & Wales
- **Practice area:** Criminal
- **Last reviewed:** 2026-07-21
- **Interactive page:** https://kttclegal.info/library/notes/Criminal/hearsay-exceptions-criminal-proceedings
- **Keywords:** hearsay, Criminal Justice Act 2003, s.114, s.116, s.118, R v Horncastle, Article 6

## What is this about?

The Criminal Justice Act 2003 replaced the old common law bar on hearsay evidence in criminal trials with a statutory framework setting out when an out-of-court statement can be admitted as evidence of the facts it states.

## What is the core rule?

CJA 2003 s.114(1) provides that hearsay is admissible only where: (a) another statutory provision makes it admissible, (b) a common law exception preserved by s.118 applies, (c) all parties agree, or (d) the court is satisfied that admission is in the interests of justice, having regard to a list of statutory factors. The main statutory gateway for an unavailable witness is s.116, covering circumstances such as the witness's death, illness, absence from the UK where attendance isn't reasonably practicable to secure, inability to locate them, or fear preventing them from testifying. Section 118 separately preserves specific common law categories (for example, public documents and reputation evidence). Multiple hearsay faces a higher threshold under s.121.

## What are the elements or test?

1. Does the statement fall within one of the four s.114(1) gateways: statutory provision, preserved common law exception, party agreement, or interests of justice?
2. If relying on witness unavailability, does one of the five s.116(2) conditions apply (death, illness, absence abroad with impracticality of securing attendance, cannot be found, or fear)?
3. If relying on a preserved common law category, does it fall within the specific categories listed in s.118?
4. If multiple hearsay, does it meet the higher s.121 threshold?

## Which authorities matter?

- **Criminal Justice Act 2003, ss.114, 116, 118, 121** — Sets the four gateways to admissibility, the witness-unavailability conditions, preserved common law categories, and the multiple hearsay threshold.
- **R v Horncastle [2009] UKSC 14, [2010] 2 AC 373** — Confirms that a conviction based solely or decisively on hearsay evidence is not automatically incompatible with Article 6 ECHR, given the CJA 2003's counterbalancing safeguards — and that domestic courts are not bound to follow contrary Strasbourg jurisprudence under HRA 1998 s.2(1).

## How does this apply in practice?

Identify the specific gateway relied upon before considering the wider fairness discretion — s.114(1)(d) (interests of justice) is a residual gateway, not the first port of call. Where witness unavailability is the basis, check the statement against each of the five s.116(2) conditions precisely, since they are not interchangeable.

## What are common pitfalls?

- Treating the 'interests of justice' gateway as a general catch-all rather than a discretion structured by specific statutory factors
- Assuming a conviction resting solely or decisively on hearsay is automatically unsafe — R v Horncastle rejects an absolute rule to that effect
- Overlooking the higher threshold for multiple hearsay under s.121

## When would a practitioner use this?

Relevant when assessing whether an out-of-court statement can be admitted at trial, whether opposing a hearsay application, or when reviewing the fairness of a conviction that relied on hearsay evidence.

## Quick reference

Four gateways (CJA 2003 s.114(1)): statutory provision / preserved common law (s.118) / party agreement / interests of justice. Main unavailability gateway: s.116 (five conditions). Multiple hearsay: higher threshold (s.121). Article 6 compatibility: R v Horncastle [2009] UKSC 14.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*