Evidence in Criminal Trials in England and Wales: Hearsay, Confessions, and Exclusion of Unfair Evidence

Evidence in Criminal Trials in England and Wales: Hearsay, Confessions, and Exclusion of Unfair Evidence

Introduction

Evidence is the foundation on which criminal trials are decided. A prosecution may have a compelling theory about what happened, a defendant may offer an alternative explanation, and investigators may believe that they have identified the person responsible. Yet a criminal court cannot simply accept every piece of information presented to it. It must determine which evidence is legally admissible, what weight that evidence deserves, and whether the process through which it was obtained is compatible with a fair trial.

The law of evidence in England and Wales therefore performs several interconnected functions. It enables the prosecution and defence to establish disputed facts, provides mechanisms for testing the reliability of statements and other material, and places limits on the use of evidence that cannot properly be challenged or that was obtained in circumstances capable of undermining the fairness of proceedings.

Three subjects are particularly important in understanding these principles: hearsay evidence, confessions, and the exclusion of unfair evidence.

Hearsay concerns statements made outside the proceedings that are introduced to prove the truth of what was said. The central statutory framework is found in the Criminal Justice Act 2003, particularly sections 114–136. The Act establishes routes through which hearsay may be admitted while preserving safeguards against unreliable or unfair evidence.

Confessions raise a different but related problem. A statement admitting involvement in an offence may be powerful evidence, but its apparent significance does not establish that it was made voluntarily, reliably, or under proper conditions. Sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE) provide important safeguards.

Exclusion of unfair evidence addresses the broader question of whether the admission of prosecution evidence would adversely affect the fairness of the proceedings to such an extent that the court should refuse to admit it. Section 78 PACE gives the court an express power to exclude prosecution evidence on this basis.

These principles must be understood together. A statement may fall within the definition of hearsay but qualify for admission under a statutory exception. A confession may be relevant and apparently credible yet be inadmissible because it was obtained through oppression or circumstances likely to render it unreliable. Evidence may also be excluded because the circumstances in which it was obtained, considered in the context of the entire case, make its admission incompatible with a fair trial.

The law does not seek to exclude every imperfect item of evidence. Instead, it balances the need to establish the truth with the rights of the accused, the reliability of the evidence, the interests of victims and witnesses, and the integrity of the criminal justice system.

This article examines the principal rules, statutory provisions, judicial safeguards, and practical distinctions governing these issues in England and Wales.

Facts: The Essential Legal Framework

The principal legislation governing the subjects discussed in this article includes:

• The Police and Criminal Evidence Act 1984, especially sections 76, 77 and 78.
• The Criminal Justice Act 2003, especially sections 114–126 and the provisions dealing with the admissibility and assessment of hearsay.
• The Human Rights Act 1998, which gives effect domestically to relevant rights under the European Convention on Human Rights, including the right to a fair trial under Article 6.
• The Criminal Procedure Rules, which regulate applications, notices, case management, and procedural steps relevant to disputed evidence.

The statutory framework is supplemented by common-law principles and judicial decisions interpreting the legislation. Section 118 of the Criminal Justice Act 2003 preserves certain common-law exceptions to the rule against hearsay. Judicial decisions also explain how the statutory provisions should be applied to particular circumstances.

The principal statutory texts can be consulted directly through the following links:

• Police and Criminal Evidence Act 1984, section 76: Confessions.
• Police and Criminal Evidence Act 1984, section 78: Exclusion of unfair evidence.
• Criminal Justice Act 2003, section 114: Admissibility of hearsay evidence.
• Criminal Justice Act 2003, Part 11, Chapter 2: Hearsay evidence.
• Criminal Procedure Rules, including the procedural requirements applicable to evidential applications.

The precise rules applicable to an individual case depend on the type of evidence, the purpose for which it is introduced, the stage of proceedings, and any relevant statutory amendments or judicial interpretation.

1. The Purpose and Structure of the Law of Evidence

The law of evidence is not merely a collection of technical rules about what a witness may say. It establishes a framework through which a court evaluates competing accounts of events.

A criminal trial commonly involves several distinct questions. Did the alleged event occur? Was the defendant involved? Does the evidence reliably identify the defendant? Can the prosecution establish the elements of the offence? Has the evidence been obtained and presented in a manner consistent with the defendant’s procedural rights?

The same item of evidence may be relevant to one question but not another. A witness might testify that the defendant was present at a particular location. That evidence could help establish opportunity, but it might not establish that the defendant committed the offence. A text message might show that a conversation occurred without proving that every factual assertion contained in the message was true.

This distinction between relevance, admissibility, and weight is fundamental.

Relevance concerns whether evidence has a logical connection to a matter in issue.

Admissibility concerns whether the law permits the court to receive and use that evidence for the proposed purpose.

Weight concerns how persuasive the evidence is once admitted.

Evidence can be relevant but inadmissible. It can also be admissible but unreliable or unpersuasive. Admission does not mean that the court must accept the evidence as true.

For example, a witness might testify that another person told them the defendant had admitted committing a burglary. The statement may be relevant because it appears to implicate the defendant. However, if the witness is repeating the account of someone who is not giving evidence, the court must consider the hearsay rules. If the statement is admitted, the court must still assess its reliability and the limitations on testing it.

The law also recognises that procedural fairness is not identical to factual accuracy. Evidence might genuinely point towards guilt but nevertheless be excluded because a statutory rule prohibits its use or because its admission would make the proceedings unfair.

These distinctions prevent the trial from becoming a simple contest in which whichever side produces the greatest quantity of apparently incriminating material necessarily prevails.

2. Hearsay Evidence: Meaning and Legal Significance

2.1 What is hearsay?

Section 114 of the Criminal Justice Act 2003 establishes the central rule governing hearsay in criminal proceedings. Broadly, hearsay involves a statement not made in oral evidence in the proceedings that is relied upon as evidence of a matter stated.

Section 115 provides further detail about statements and the matters they are intended to establish.

In practical terms, hearsay often arises when one person repeats a statement made by someone else to prove that the statement was true.

Suppose a witness tells the court:

“I did not see the defendant take the phone. However, my neighbour told me that she saw the defendant take it.”

If the prosecution relies on the neighbour’s alleged statement to prove that the defendant took the phone, the evidence raises a hearsay issue. The witness in court is not the person who claims to have observed the theft. The original speaker is not necessarily present to give evidence and answer questions.

The difficulty is not simply that the statement was made outside court. Much of the evidence used in criminal trials originates outside the courtroom. Photographs, records, messages, and physical objects may all have been created or collected before proceedings began. The important question is whether a statement is being relied upon to prove the truth of what it asserts.

2.2 Why does the law treat hearsay differently?

The traditional concern about hearsay is that the person who made the original statement may not be available for cross-examination.

Cross-examination allows the opposing party to test the witness’s memory, perception, honesty, reasoning, and account of events. It can reveal inconsistencies, mistaken assumptions, exaggerations, or motives to mislead.

Where a statement is repeated by another person, the court may have to consider two separate sources of potential error. The original speaker may have been mistaken or dishonest. The person repeating the statement may have misunderstood, misremembered, or inaccurately reported it.

The original speaker’s absence may also prevent the court from examining the circumstances in which the statement was made. It may be unclear whether the speaker had a direct opportunity to observe the event, was under pressure, was repeating a rumour, or had an interest in the outcome.

These concerns explain why hearsay is regulated. They do not mean that hearsay is necessarily false. A statement made shortly after a traumatic event, a reliable business record, or a statement from a person who has since died may be highly informative. The law therefore permits hearsay through defined statutory and common-law routes.

The modern approach is not an absolute prohibition. It is a structured system of admissibility, procedural safeguards, and judicial evaluation.

2.3 The purpose for which a statement is used

The same statement can raise different evidential questions depending on the purpose for which it is introduced.

Imagine that a witness says, “The shopkeeper told me that the defendant had threatened him.”

If the statement is introduced to prove that the defendant actually made the threat, it may constitute hearsay.

If the statement is introduced only to explain why the witness went to a particular location, the truth of the allegation may not be the issue. Depending on the circumstances, the statement might be relevant to explain the witness’s subsequent conduct without proving that the defendant made the threat.

The court must identify the particular fact the statement is intended to establish. It should not assume that every reference to an out-of-court statement is necessarily hearsay for every possible purpose.

This distinction is especially important when considering text messages, social-media communications, recordings, and conversations reported by third parties. Their legal character depends not simply on their format but on the purpose for which they are relied upon.

3. The Four Principal Routes to Admitting Hearsay

Section 114(1) of the Criminal Justice Act 2003 identifies four principal routes through which hearsay may be admitted in criminal proceedings.

First, a provision of the Act or another statutory provision may make the evidence admissible.

Second, a common-law rule preserved by section 118 may permit its admission.

Third, all parties to the proceedings may agree to the evidence being admitted.

Fourth, the court may be satisfied that admission is in the interests of justice.

These routes provide the basic structure for analysing hearsay. The existence of one route does not remove the need to comply with relevant procedural requirements or other rules that may independently restrict the evidence.

3.1 Statutory exceptions

The Criminal Justice Act 2003 provides several statutory routes for admitting hearsay. Their requirements differ according to the circumstances.

A statutory exception may apply where a witness is unavailable, where a statement forms part of certain business or other records, or where another specific provision permits the evidence to be used.

The court must examine the conditions attached to the particular exception. It is not sufficient simply to demonstrate that the original speaker cannot attend court or that the statement appears useful to the prosecution.

3.2 Preserved common-law exceptions

Section 118 preserves specified common-law exceptions to the hearsay rule. These include recognised categories of statements associated with events or circumstances that may provide a justification for admitting them.

One example is the doctrine commonly known as res gestae. In broad terms, it can apply to certain statements so closely connected with an event or state of affairs that their circumstances provide a basis for admission.

A statement made by a person overwhelmed by an event, for example, may be considered under the relevant principles where the circumstances support the conclusion that the possibility of deliberate invention or distortion can be disregarded.

However, a statement does not qualify merely because it was made quickly or sounds spontaneous. The court must apply the relevant legal principles to the actual circumstances.

The preserved exceptions are specific legal categories, not a general licence to admit any statement that appears credible.

3.3 Agreement between the parties

Section 114(1)(c) permits hearsay to be admitted where all parties agree.

Agreement may be appropriate where the statement is not genuinely disputed, where its admission avoids unnecessary witness attendance, or where the parties consider that the evidential issue can be resolved without requiring the original maker to testify.

For example, the parties might agree that a particular record accurately reproduces a statement and that its contents can be considered without calling the original maker, subject to any relevant limitations.

Agreement does not mean that the statement becomes objectively true. It means that the parties have agreed to its admission. The court must still consider the evidence in the context of the case and any other applicable legal requirements.

3.4 Admission in the interests of justice

Section 114(1)(d) allows the court to admit hearsay where it is satisfied that doing so is in the interests of justice.

This is a structured judicial discretion rather than an unrestricted power to admit anything the court considers useful.

Under section 114(2), the court must consider relevant factors, including:

• The statement’s potential probative value.
• The other evidence available on the issue.
• The importance of the matter in the context of the case.
• The circumstances in which the statement was made.
• The apparent reliability of the maker.
• The apparent reliability of the evidence that the statement was made.
• Whether the original speaker can give oral evidence and, if not, why.
• The difficulty the opposing party would face in challenging the statement.
• The likely prejudice arising from that difficulty.

These factors require a contextual assessment. A statement that is central to the prosecution’s case may require particularly careful examination if the defence has little opportunity to test it. Conversely, a statement that provides limited background information may present a different risk.

The court must consider not only whether the evidence could assist in establishing the truth, but also whether its admission can be reconciled with a fair process.

The statutory text is available in section 114 of the Criminal Justice Act 2003.

4. Hearsay from an Unavailable Witness

4.1 Section 116 of the Criminal Justice Act 2003

Section 116 provides a route for admitting certain statements where the person who made them is unavailable to give oral evidence.

The provision is subject to defined conditions. In general, the original maker must be identified to the court’s satisfaction, oral evidence from that person would have been admissible on the matter in question, and one of the statutory conditions for unavailability must be established.

The recognised circumstances include death, physical or mental unfitness to be a witness, being outside the United Kingdom where securing attendance is not reasonably practicable, inability to find the witness despite reasonable steps, and fear, subject to the statutory requirements.

The exact wording of the provision and the conditions attached to the particular case must be examined before relying on this exception.

The rationale is practical but limited. Criminal proceedings should not automatically become impossible because a person who made a relevant statement cannot attend. At the same time, unavailability cannot itself establish that the absent person’s account is accurate.

4.2 Death of a witness

A witness may die after making a statement to the police or another person. In appropriate circumstances, the statement may be considered for admission under section 116.

For example, a person who witnessed an assault may have given a detailed statement identifying the attacker before dying from an unrelated illness.

The death of the witness removes the possibility of ordinary cross-examination. The court must therefore consider whether the statutory conditions are satisfied and how the absence affects the fairness and reliability of the evidence.

The fact that a witness has died does not make every previous statement admissible. Nor does admission require the court to accept the statement without scrutiny.

4.3 Witnesses who cannot be found

A witness may disappear or become impossible to locate despite reasonable efforts.

The law requires more than a bare assertion that the witness is unavailable. The relevant statutory conditions must be met, including the requirement concerning reasonable steps to find the person.

This is important because the availability of a witness may change during proceedings. A witness who cannot initially be located might later be found, and the procedural approach may need to be reconsidered.

The exception should not become a substitute for reasonable investigative work.

4.4 Witnesses who are afraid

Fear can create a serious difficulty in criminal proceedings, particularly where a witness has allegedly been threatened or intimidated.

Section 116 includes a fear-related condition, subject to statutory requirements. It is not a general rule that a witness’s statement can be admitted whenever the person is reluctant to attend court.

The court must examine the legal conditions, the circumstances of the fear, and the implications for the opposing party’s ability to challenge the account.

Fear-related hearsay must be distinguished from other statutory mechanisms designed to protect vulnerable or intimidated witnesses. Depending on the circumstances, special measures may permit a witness to give evidence in a way that assists them to participate in the trial. Those measures do not necessarily require the witness’s evidence to be replaced by a previous statement.

The central question is whether the relevant legal conditions permit the statement to be used and whether the resulting proceedings remain fair.

5. Business Records and Other Documentary Hearsay

Section 117 of the Criminal Justice Act 2003 addresses certain statements contained in documents or records created or maintained in the course of a trade, business, profession, or other occupation, or as part of a paid or unpaid office.

This provision can be important in cases involving financial transactions, commercial records, employment records, medical documentation, and other routinely maintained information.

Modern criminal investigations often depend on large quantities of documentary material. Requiring every person involved in creating or handling every record to attend court could be impractical and unnecessary.

However, section 117 does not make all business documents automatically admissible. Its requirements must be satisfied, and special conditions apply to certain records, including statements prepared for the purposes of criminal proceedings.

Consider a fraud investigation involving hundreds of transactions. The prosecution may rely on records generated in the ordinary course of a business. Depending on the statutory conditions, some of those records may be admitted without requiring every person who entered or processed the information to testify.

The court must nevertheless distinguish between a record’s existence and the truth of every assertion contained in it. A spreadsheet might accurately record what an employee entered into a system while the underlying entry remains mistaken or deliberately false.

Questions of authorship, source information, record-keeping practices, system reliability, and the possibility of manipulation may therefore remain important.

A document’s professional appearance or routine use does not automatically establish the accuracy of its contents.

6. Multiple Hearsay

Multiple hearsay occurs when a statement is repeated through more than one person or communication before it reaches the court.

For example, a witness may tell the police that a colleague told them that a third person had admitted seeing the defendant at the scene of an offence. If the prosecution relies on the chain of statements to establish the defendant’s presence, the court may have to examine multiple layers of hearsay.

Each additional layer can create difficulties. The original speaker may have misunderstood the event; an intermediary may have inaccurately repeated the statement; and the final witness may have misunderstood or misremembered what the intermediary said.

Section 121 of the Criminal Justice Act 2003 regulates the admissibility of multiple hearsay. It provides defined routes for its admission rather than treating every chain of repeated statements as admissible.

The court should identify each statement and the purpose for which it is relied upon. It must then determine whether the statutory requirements are satisfied.

Multiple hearsay is not automatically excluded in every circumstance, but the existence of several layers of reporting can materially affect the reliability of the evidence and the practical ability to challenge it.

Where the original source is available, calling that person may provide a more direct and reliable means of resolving the disputed issue.

7. The Court’s Powers to Control Hearsay

The statutory system does not end once a party identifies a route for admitting hearsay.

The Criminal Justice Act 2003 also contains safeguards relating to the use and assessment of such evidence.

Section 125 addresses cases in which the prosecution case depends wholly or partly on hearsay evidence and the court is satisfied that the evidence is so unconvincing that, considering its importance to the case, a conviction would be unsafe. The provision requires the court to take the statutory steps applicable to that situation.

Section 126 provides a power to refuse hearsay evidence where the case for excluding it substantially outweighs the case for admitting it, having regard to the relevant statutory considerations.

These provisions demonstrate that admissibility and sufficiency are separate questions.

A statement may satisfy a statutory gateway but still prove too weak to support the prosecution case. Similarly, the admission of hearsay does not prevent the court from examining its limitations when assessing whether the prosecution has proved guilt beyond reasonable doubt.

The law therefore recognises that the fair treatment of hearsay requires more than an initial decision to admit or exclude it. Its practical significance must continue to be assessed as the case develops.

8. Confessions: Meaning and Evidential Importance

8.1 What constitutes a confession?

Section 82(1) of the Police and Criminal Evidence Act 1984 defines a confession broadly. It includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.

A confession is therefore not limited to a formal admission recorded during a police interview.

It may include an admission made to a police officer, a statement to another person, a written communication, or conduct capable of amounting to a statement within the statutory definition.

For example, a suspect may tell a friend that they took property from a particular house. Alternatively, a suspect may make a partial admission, accepting that they were present at the scene while denying that they committed the offence.

A confession can be wholly or partly adverse to the person making it. It does not have to amount to a complete admission of every element of the offence.

Confessions are potentially powerful because they may provide direct evidence of the accused’s own account of their involvement. However, the law recognises that an admission can be mistaken, coerced, misunderstood, fabricated, or produced by circumstances that undermine its reliability.

8.2 A confession is not automatically conclusive

The existence of a confession does not automatically establish guilt.

A confession must be relevant to an issue in the proceedings and must be legally admissible. Even when admitted, its reliability and significance remain matters for evaluation.

The court may need to consider whether the statement was accurately recorded, whether the accused understood the questions, whether the statement was voluntary in the relevant legal sense, and whether the surrounding circumstances raise concerns about reliability.

The accused may have made a partial admission while providing an explanation that undermines the prosecution’s interpretation. A statement that the accused was present at a location, for example, is not necessarily an admission that they committed an offence there.

The content must be examined in context rather than reduced to a single incriminating phrase.

9. Excluding Confessions Under Section 76 PACE

Section 76 of the Police and Criminal Evidence Act 1984 establishes a specific and important safeguard for confessions.

Under section 76(1), a confession may be given in evidence against the accused to the extent that it is relevant to a matter in issue and is not excluded under the section.

Section 76(2) provides that where it is represented to the court that a confession was or may have been obtained by oppression, or in consequence of something said or done that was likely in the circumstances to render a confession unreliable, the court must exclude it unless the prosecution proves beyond reasonable doubt that it was not obtained in that way.

The provision is significant for two reasons. First, it addresses particular circumstances in which a confession’s reliability or the conditions of its production are seriously in question. Second, it places a demanding burden on the prosecution once the statutory issue is raised.

The court may also require the prosecution to establish that the confession was not obtained in the prohibited circumstances, even where the issue has not been raised by the defence.

9.1 Oppression

Section 76(8) states that oppression includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture.

Oppression concerns the circumstances in which a statement is obtained. It is incompatible with the proper administration of criminal justice for the prosecution to rely on a confession extracted through prohibited treatment.

Examples of circumstances that may raise serious concerns include threats of violence, violent treatment, or treatment that falls within the statutory description of oppression.

Whether conduct amounts to oppression depends on the evidence and applicable law. The court must examine what happened, the nature and severity of the conduct, and the circumstances in which the statement was made.

The statutory rule is not merely concerned with whether the accused’s admission happened to be true. Section 76 recognises that a confession obtained through oppression is subject to a specific exclusionary safeguard.

9.2 Circumstances likely to render a confession unreliable

Section 76(2)(b) addresses statements obtained in consequence of something said or done that was likely, in the circumstances existing at the time, to render any resulting confession unreliable.

This provision focuses on the risk that the circumstances produced an unreliable admission.

Examples that may require scrutiny include threats that a suspect will remain in custody until they confess, improper inducements, or interview practices that place unacceptable pressure on the suspect to make an admission.

A suspect may also be vulnerable because of their age, comprehension, mental or physical condition, or other circumstances relevant to the interview. Those factors do not automatically establish inadmissibility, but they may be important in assessing the statutory issue.

The court must examine the causal connection between the relevant conduct and the confession. The statutory test is not satisfied simply because the interview was unpleasant or because the suspect later regretted the statement. The question is whether the confession was obtained in consequence of conduct likely to render it unreliable.

9.3 The prosecution’s burden of proof

Where the section 76(2) procedure is engaged, the prosecution must prove beyond reasonable doubt that the confession was not obtained through the prohibited circumstances.

This is a significant safeguard. The defendant is not required to establish the confession’s unreliability beyond reasonable doubt. Instead, the prosecution must meet the statutory burden once the relevant issue is raised.

The burden reflects the seriousness of allowing a potentially unreliable or improperly obtained confession to be used as evidence against an accused person.

The court may consider interview recordings, custody records, witness testimony, medical evidence where relevant, and the surrounding circumstances when determining whether the prosecution has discharged the burden.

The final decision must be based on the applicable statutory test rather than on a general impression that the suspect probably committed the offence.

9.4 The truth of the confession does not resolve the issue

A particularly important feature of section 76 is that the statutory exclusion may apply notwithstanding that the confession may be true.

This reflects the distinction between the factual content of a statement and the legality of relying on it in criminal proceedings.

A confession obtained through oppression may appear to be corroborated by other evidence. That does not remove the statutory safeguard. The law is concerned not only with the possibility of factual error but also with the integrity of the process through which the prosecution seeks to prove guilt.

The court must apply the statutory requirements even where the prosecution believes the admission accurately describes what happened.

The relevant provision can be read in full in section 76 PACE.

10. Confessions and Police Interview Procedures

The admissibility of a confession may depend heavily on the circumstances in which it was obtained.

PACE and its associated Codes of Practice regulate important aspects of police detention, questioning, legal advice, and the recording of interviews. These requirements help establish a reliable record of what occurred and provide safeguards for people held in police custody.

The precise obligations depend on the circumstances, including the type of interview, the status of the person being questioned, and the applicable provisions of PACE and its Codes.

10.1 Access to legal advice

Access to legal advice is an important protection during police detention and questioning. A suspect may need assistance in understanding their rights, the nature of the allegations, and the implications of answering questions.

A failure to provide access to legal advice where legally required may raise serious questions about the fairness of the interview and the admissibility of resulting evidence.

However, it is important not to treat every procedural irregularity as automatically requiring exclusion under section 76. The court must apply the relevant legal test to the particular circumstances. Section 78 may also be relevant where the issue concerns the overall fairness of admitting prosecution evidence.

10.2 Recording and accuracy

An accurate record of an interview can be crucial when the prosecution relies on a confession.

A recording may help establish the questions asked, the answers given, the sequence of events, and whether a statement has been accurately represented. It may also reveal whether the accused was interrupted, whether an answer was qualified, or whether the prosecution’s summary omits important context.

Where the wording of a confession is disputed, the court must assess the available evidence concerning what was actually said.

An apparent admission in a written summary may have a different meaning when the complete exchange is considered.

10.3 Vulnerable suspects

Some suspects may have difficulty understanding questions, communicating effectively, or appreciating the consequences of an interview. Vulnerability may arise from age, disability, mental or physical condition, communication difficulties, or other circumstances recognised by the relevant rules.

The applicable safeguards are designed to reduce the risk of misunderstanding, unreliable admissions, and unfair treatment.

A suspect’s vulnerability does not automatically render every statement inadmissible. It is nevertheless relevant where it affects the circumstances in which the statement was made, the reliability of the admission, or the fairness of relying on it.

10.4 Inducements and threats

A confession may be called into question where a suspect was offered an improper inducement or threatened with adverse consequences unless they admitted guilt.

For example, a suspect may be told that they will receive a particular benefit if they confess, or that they will remain in custody until they provide an admission. Depending on the circumstances, such conduct may raise issues under section 76.

The court must assess the precise words and conduct involved, their likely effect on the suspect, and the applicable legal test. It should not assume that every promise or statement about possible consequences necessarily has the same legal effect.

The essential issue is whether the statutory conditions for exclusion have been met.

11. Confessions and Evidence Discovered as a Result

Section 76 also addresses the relationship between an excluded confession and evidence discovered as a result of it.

Under section 76(4), exclusion of all or part of a confession does not automatically make every fact discovered as a result of the confession inadmissible. The provision preserves the admissibility of certain facts discovered through the confession, subject to the statutory qualifications.

Section 76(5) and (6) contain additional restrictions concerning evidence that a fact was discovered as a result of a confession that has been excluded, or the excluded part of a confession.

These provisions illustrate why the legal analysis must be precise. The exclusion of a confession does not necessarily resolve the admissibility of every separate item of evidence connected with the investigation.

Consider a hypothetical case in which a suspect makes a confession that is excluded under section 76. The statement refers to the location of a stolen item. The police subsequently recover an item at that location.

The court must distinguish between the excluded confession, evidence of the discovery, and the recovered object itself. The applicable statutory provisions and any other relevant exclusionary rules must be examined before determining what may be used at trial.

It would be incorrect to assume either that the discovery automatically becomes inadmissible or that the prosecution may always rely on it without further analysis.

The precise restrictions in section 76 must be considered alongside any other relevant legal principles.

12. Excluding Unfair Evidence Under Section 78 PACE

Section 78 of the Police and Criminal Evidence Act 1984 gives the court a separate power to refuse to admit prosecution evidence where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The statutory wording requires the court to consider all the circumstances, including the circumstances in which the evidence was obtained.

Unlike section 76, which deals specifically with confessions obtained through oppression or circumstances likely to render them unreliable, section 78 can apply to a wider range of prosecution evidence.

It may become relevant where evidence was obtained through improper investigative practices, where legal safeguards were disregarded, or where the circumstances of obtaining the evidence raise serious concerns about the fairness of relying on it.

Section 78 does not establish an automatic rule that every breach of a police procedure requires exclusion. The court must assess the circumstances and determine whether the statutory threshold is met.

12.1 The purpose of section 78

Section 78 protects the fairness of criminal proceedings. It recognises that the way evidence is obtained can matter to whether it should be admitted.

The provision is concerned with the adverse effect on fairness that would result from admission. It is not simply a mechanism for punishing the police for every procedural error.

A breach may be relevant even where the evidence appears factually reliable. Equally, not every unlawful or irregular investigative act necessarily results in exclusion under section 78.

The court must assess the nature of the breach, the circumstances in which the evidence was obtained, its significance to the prosecution case, and the effect of admitting it on the fairness of the proceedings.

12.2 Evidence obtained through an improper search

Imagine that police officers search premises and recover an object relevant to an alleged offence. The defence argues that the search was conducted without the authority required by law.

The court would need to consider the legal basis for the search, the precise circumstances, and the applicable rules governing the evidence obtained.

The fact that a search was unlawful or irregular does not mean that exclusion under section 78 follows automatically. The court must apply the statutory fairness test, while also considering any other rule that may require exclusion.

The question is not merely whether the officers made a mistake. It is whether admitting the evidence would have the adverse effect on the fairness of the proceedings specified in section 78.

12.3 Failure to respect procedural safeguards

Section 78 may also become relevant where investigators fail to respect important safeguards governing questioning, detention, interpretation, or the recording of evidence.

For example, a person may have been interviewed in circumstances that prevented effective communication, or an important procedural requirement may have been ignored.

The seriousness of the failure and its consequences must be examined. A technical defect that has no meaningful effect on the reliability of the evidence or the fairness of the trial may be treated differently from conduct that materially undermines the accused’s ability to understand, challenge, or respond to the evidence.

The court must not substitute a general preference for perfect procedure for the statutory test. Nor should it disregard a serious breach simply because the resulting evidence appears incriminating.

12.4 Evidence obtained through deceptive or improper conduct

Investigative conduct involving deception, pressure, or misleading representations may also raise questions under section 78, depending on the circumstances.

The legal analysis requires attention to the specific conduct and its connection to the evidence. The fact that investigators used an investigative technique that the defence considers objectionable does not itself settle admissibility.

The court must consider the applicable legal requirements and whether admitting the evidence would make the proceedings unfair to the extent described by the section.

The statutory provision is available in full at section 78 PACE.

13. The Relationship Between Sections 76 and 78

Sections 76 and 78 perform related but distinct functions.

Section 76 establishes a specific rule for excluding a confession where the relevant statutory conditions concerning oppression or circumstances likely to render it unreliable are engaged. It includes a prosecution burden of proof.

Section 78 provides a broader discretion to exclude prosecution evidence where admitting it would have the specified adverse effect on fairness.

The two provisions may overlap in a case involving a confession. For example, the circumstances of an interview may raise questions about the confession’s reliability under section 76 and the overall fairness of admitting it under section 78.

However, the provisions should not be treated as interchangeable. A court must identify the legal issue and apply the correct statutory test.

The distinction can be summarised as follows:

Section 76: Is the confession subject to mandatory exclusion because of the circumstances in which it was obtained, unless the prosecution satisfies the statutory burden?

Section 78: Would admitting the prosecution evidence, having regard to all the circumstances including how it was obtained, have such an adverse effect on fairness that the court ought not to admit it?

This distinction matters because different legal tests may apply to different forms of evidence and different circumstances.

It also explains why the exclusion of a confession does not automatically resolve the status of other evidence obtained during the same investigation.

14. Unlawfully Obtained Evidence and the Absence of an Automatic Exclusionary Rule

One of the most persistent misunderstandings about criminal evidence is the belief that any evidence obtained unlawfully must automatically be excluded.

The position in England and Wales is more nuanced.

Section 78 gives the court a statutory power to exclude prosecution evidence where the fairness threshold is met. Other legal rules may require exclusion in particular circumstances. However, the fact that evidence was obtained unlawfully does not, by itself, establish that section 78 must be used.

The court must examine the applicable legal framework, the nature of the illegality, the circumstances in which the evidence was obtained, and the effect of admission on the fairness of the proceedings.

This approach does not mean that unlawful investigative conduct is irrelevant. It may be highly significant. It means that the legal consequence must be determined under the applicable rules rather than through a universal assumption.

For example, an irregularity in the way an object was recovered may raise questions different from those arising where a confession was obtained through violence or oppressive treatment. The relevant statutory safeguards may therefore lead to different outcomes.

The court must distinguish between the legality of the investigative conduct, the admissibility of the resulting evidence, and any separate consequences that may arise from the conduct itself.

15. Article 6 and the Right to a Fair Trial

The law of evidence operates within the broader framework of the right to a fair trial.

Article 6 of the European Convention on Human Rights protects the right to a fair hearing in the determination of a criminal charge. The Human Rights Act 1998 gives relevant Convention rights domestic legal effect.

Fairness may require the court to consider whether the accused has a meaningful opportunity to challenge the evidence against them, whether the proceedings are conducted impartially, and whether the evidential process as a whole respects the rights of the defence.

15.1 The right to challenge evidence

The ability to challenge evidence is particularly important where the prosecution relies on hearsay.

If the original speaker cannot be questioned, the defence may have limited opportunities to examine the person’s perception, memory, honesty, or motives. The court must consider those difficulties when applying the statutory framework.

However, the absence of an opportunity to cross-examine the original speaker does not automatically make every hearsay statement incompatible with a fair trial.

The Criminal Justice Act 2003 contains specific conditions and safeguards intended to regulate the admission of hearsay. The court must apply those provisions in a manner consistent with the fairness requirements governing criminal proceedings.

The importance of the statement, the reason for the witness’s absence, the available supporting evidence, and the practical ability to challenge the account may all be relevant.

15.2 Convictions based on hearsay

Hearsay evidence may sometimes be important or even central to the prosecution case. The law does not impose an absolute rule that a conviction can never rest on hearsay.

Nevertheless, where the prosecution relies heavily on a statement that cannot be tested directly, the court must examine the applicable safeguards and the evidence’s overall reliability.

The House of Lords considered aspects of this issue in R v Horncastle [2009] UKSC 14, a case concerning the use of hearsay in criminal proceedings and the compatibility of the statutory framework with fair-trial principles.

The decision illustrates the importance of examining the statutory safeguards as a whole rather than assuming that the absence of cross-examination necessarily determines the outcome.

The judgment can be read through the UK Supreme Court’s case-law resources.

15.3 Fairness is assessed in context

A fair trial does not require every item of evidence to be perfect. Nor does it require the prosecution to prove its case exclusively through direct eyewitness testimony.

Instead, the court must consider the applicable rules and the proceedings as a whole, while respecting the accused’s rights.

This contextual approach is essential because criminal cases differ substantially. A hearsay statement supported by independent evidence may present different issues from an uncorroborated statement that is the only evidence identifying the defendant.

Similarly, a confession recorded in circumstances that permit careful scrutiny may raise different issues from an alleged admission obtained through prohibited treatment.

The governing principles must be applied to the evidence actually presented rather than to abstract assumptions about the reliability of particular categories of evidence.

16. The Role of Judicial Decisions

Statutes provide the central framework, but judicial decisions are essential to understanding how the rules operate.

Courts interpret statutory language, apply legal tests to specific facts, and clarify the relationship between admissibility, reliability, and fairness.

In the context of hearsay, judicial decisions address the identification of the relevant statement, the purpose for which it is relied upon, the application of statutory exceptions, and the safeguards necessary where the original maker cannot be questioned.

In relation to confessions, courts examine the meaning of oppression, the circumstances capable of rendering a confession unreliable, the prosecution’s statutory burden, and the significance of procedural safeguards.

For section 78, judicial decisions help explain the circumstances in which the admission of prosecution evidence would have the adverse effect on fairness required by the statute.

A court’s decision must be understood in its factual and legal context. A case involving an oppressive interview does not establish that every procedural irregularity requires exclusion. Likewise, a case admitting hearsay in particular circumstances does not mean that all statements from unavailable witnesses are admissible.

The careful study of judgments therefore requires attention to the legal issue decided, the statutory provision applied, the material facts, and the reasoning that supports the outcome.

17. Applying the Rules: Illustrative Examples

The following examples are hypothetical. They illustrate the legal distinctions discussed in this article and do not predict the outcome of any actual case.

Example One: A witness repeats an accusation

A witness tells the court that a neighbour said the defendant committed an assault. The neighbour is not called to give evidence.

The court must first determine whether the statement is being relied upon to prove that the defendant committed the assault. If so, the hearsay rules are engaged.

The prosecution must identify a lawful route to admission, such as a relevant statutory exception, agreement between the parties, or the interests-of-justice provision where its requirements are met.

If the statement is admitted, the court must assess its reliability and the difficulties faced by the defence in challenging it. Admission does not establish that the allegation is true.

Example Two: A statement made shortly after an event

Immediately after a serious incident, a person makes a statement describing what they have just witnessed. The person later becomes unavailable.

The prosecution seeks to rely on the statement.

The court must identify the applicable legal basis for admission. Depending on the circumstances, a statutory exception or a preserved common-law exception may be relevant.

The timing of the statement may be significant, but it is not conclusive. The court must apply the appropriate legal test and consider the surrounding circumstances.

Example Three: An alleged confession obtained through threats

A suspect is told during questioning that they will remain in custody indefinitely unless they admit committing an offence. The suspect then makes an admission.

The defence challenges the confession under section 76 PACE.

The court must consider whether the confession was obtained in consequence of conduct likely to render it unreliable, or whether other relevant statutory conditions apply. If section 76(2) is engaged, the prosecution must satisfy the statutory burden.

The court must not assume that the confession is admissible simply because it appears to implicate the suspect.

Example Four: A disputed confession with a qualified admission

During an interview, a suspect acknowledges being present at the scene but denies committing the offence. A later summary describes the exchange as an admission of involvement.

The defence disputes the summary’s accuracy.

The court must examine what the suspect actually said and the context in which the statement was made. The recording or other available evidence may be important.

Even if the statement is admissible, the court must determine what it proves. An admission of presence is not necessarily an admission of criminal conduct.

Example Five: Evidence recovered during a disputed search

Police officers recover an object relevant to an alleged offence during a search that the defence claims was unlawful.

The court must consider the legal basis for the search, the relevant statutory rules, and whether exclusion under section 78 is justified.

It would be incorrect to assume that the object must automatically be excluded merely because the search is challenged. It would be equally incorrect to assume that the manner of recovery is irrelevant.

The applicable legal tests must be examined in light of the circumstances.

Example Six: A witness statement is the principal evidence

The prosecution relies on a statement from a witness who cannot attend court. The statement identifies the defendant as the person responsible for the offence, but the defence cannot question the witness.

The court must determine whether the statement is admissible under the applicable hearsay provisions. It must also consider the importance of the statement, the reason for the witness’s absence, the available supporting evidence, and the safeguards for assessing reliability.

Even if the statement is admitted, the court must consider whether the prosecution has proved the charge beyond reasonable doubt.

These examples demonstrate why the law requires separate consideration of admissibility, reliability, and the sufficiency of the evidence.

18. Common Misunderstandings About Criminal Evidence

Misunderstanding One: Hearsay is always inadmissible

This is incorrect. Hearsay is subject to statutory and preserved common-law rules that allow admission in defined circumstances. Section 114 of the Criminal Justice Act 2003 identifies the principal routes.

Misunderstanding Two: If a witness is unavailable, their statement can automatically be used

Unavailability alone is insufficient. The relevant statutory requirements must be satisfied, and the court must consider any applicable procedural requirements and safeguards.

Misunderstanding Three: A confession automatically proves guilt

A confession may be powerful evidence, but it must be relevant and admissible. Its meaning, reliability, and weight must be assessed in context.

Misunderstanding Four: A confession must be excluded only if it was physically forced

Section 76 addresses oppression, which expressly includes certain forms of treatment and violence, and also addresses conduct likely to render a confession unreliable. Physical force is not the only relevant concern.

Misunderstanding Five: Every procedural error requires exclusion

The legal consequence of a procedural error depends on the applicable provision and circumstances. Section 78 requires the court to consider whether admission would have the specified adverse effect on fairness. Other rules may impose different requirements.

Misunderstanding Six: Illegally obtained evidence is always excluded

There is no universal rule that every item of unlawfully obtained evidence must automatically be excluded under section 78. The court must apply the relevant statutory and other legal rules.

Misunderstanding Seven: Admitted evidence must be accepted as true

Admissibility and weight are separate matters. Evidence may be admitted and then rejected, given limited weight, or found insufficient to establish the relevant fact.

Misunderstanding Eight: The court considers each item of evidence in isolation

Although individual items must satisfy the relevant admissibility rules, their significance is assessed in the context of the case as a whole. Supporting evidence, inconsistencies, alternative explanations, and the practical ability to challenge a statement may all matter.

19. Why These Rules Matter to the Integrity of Criminal Justice

The rules governing hearsay, confessions, and unfair evidence are central to public confidence in criminal justice.

A system that accepted every accusation without examining its source would risk wrongful convictions. A system that excluded all statements made outside court would risk losing important evidence in cases involving deceased witnesses, unavailable witnesses, and records necessary to establish complex events.

Similarly, a system that accepted every confession without examining the circumstances in which it was obtained would create unacceptable risks. Yet a system that excluded every confession affected by any procedural imperfection, regardless of the relevant statutory test, would fail to apply the law consistently.

The statutory framework seeks to avoid these extremes. It permits evidence to be admitted where the legal requirements are satisfied while preserving safeguards against unreliable, improperly obtained, or unfairly presented material.

These rules also shape investigative practice. Investigators and prosecutors must pay attention not only to whether evidence appears incriminating but also to how it was obtained, recorded, preserved, and prepared for trial. Accurate records and proper procedures can help ensure that relevant evidence is presented in a way that allows the court to evaluate it fairly.

For the defence, understanding the evidential framework is important because it provides a basis for identifying the legal issue raised by a particular statement or item of evidence. A challenge to hearsay may concern the absence of a statutory gateway. A challenge to a confession may concern oppression or reliability under section 76. A broader challenge may concern the fairness of admitting evidence under section 78.

These are distinct legal arguments, and the applicable test must be identified carefully.

Ultimately, the law of evidence supports both truth-seeking and procedural fairness. It seeks to ensure that decisions are based on material that can lawfully be considered, that significant limitations are recognised, and that the accused is not convicted through a process that fails to respect the governing legal safeguards.

Key Takeaways

The law of criminal evidence in England and Wales distinguishes between the relevance of evidence, its legal admissibility, and the weight it deserves.

Hearsay is generally regulated by the Criminal Justice Act 2003. Section 114 identifies four principal routes to admission: statutory provision, preserved common-law exceptions, agreement between the parties, and admission in the interests of justice. Other provisions address unavailable witnesses, business records, multiple hearsay, and the court’s powers to control weak or unfair evidence.

Confessions are governed principally by sections 76 and 78 of the Police and Criminal Evidence Act 1984. Section 76 requires exclusion where the relevant statutory conditions concerning oppression or circumstances likely to render a confession unreliable are met, unless the prosecution discharges the statutory burden of proof.

Section 78 gives the court a broader power to exclude prosecution evidence where admitting it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

The fact that evidence was obtained unlawfully does not automatically settle its admissibility under section 78. The court must apply the relevant legal test and consider the circumstances.

Finally, the admission of evidence does not establish its truth or determine the outcome of the case. The court must evaluate the evidence in context and determine whether the prosecution has proved the defendant’s guilt beyond reasonable doubt.

Frequently Asked Questions

1. What is hearsay evidence in England and Wales?

Hearsay generally involves a statement not made in oral evidence in the proceedings that is relied upon to prove the truth of a matter stated. Its admissibility in criminal proceedings is principally governed by the Criminal Justice Act 2003.

2. Is hearsay evidence admissible in a criminal trial?

Yes, in circumstances permitted by law. Section 114 of the Criminal Justice Act 2003 provides four principal routes to admission, including statutory exceptions, preserved common-law exceptions, agreement between the parties, and admission in the interests of justice.

3. Can a witness’s statement be used if the witness has died?

It may be admissible if the requirements of a relevant statutory provision, such as section 116 of the Criminal Justice Act 2003, are satisfied. The death of the witness does not automatically make every previous statement admissible.

4. What is a confession under PACE?

Section 82(1) of the Police and Criminal Evidence Act 1984 defines a confession broadly as a statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether expressed in words or otherwise.

5. When must a confession be excluded under section 76 PACE?

Where the statutory conditions are engaged because the confession was or may have been obtained through oppression or in consequence of conduct likely to render it unreliable, the court must exclude it unless the prosecution proves beyond reasonable doubt that it was not obtained in the prohibited circumstances.

6. What is the difference between sections 76 and 78 PACE?

Section 76 specifically addresses the exclusion of confessions obtained through oppression or circumstances likely to render them unreliable. Section 78 provides a broader power to exclude prosecution evidence where its admission would have the specified adverse effect on the fairness of the proceedings.

7. Does unlawfully obtained evidence have to be excluded?

Not automatically under section 78. The court must apply the relevant legal test, consider the circumstances in which the evidence was obtained, and determine whether admitting it would have the adverse effect on fairness specified by the statute. Other rules may require exclusion in particular circumstances.

8. Can a person be convicted on hearsay evidence alone?

The law does not impose an absolute prohibition on convictions based solely or decisively on hearsay. However, the court must apply the statutory safeguards and assess the evidence’s reliability, importance, and effect on the fairness of the trial. The prosecution must still prove guilt beyond reasonable doubt.

9. Does the admission of a confession mean that the court must believe it?

No. Admissibility determines whether the evidence may be considered. The court must still assess its meaning, reliability, and weight alongside the other evidence.

10. Which legislation is most important for these issues?

The principal legislation is the Criminal Justice Act 2003, particularly sections 114–126 concerning hearsay, and the Police and Criminal Evidence Act 1984, particularly sections 76 and 78 concerning confessions and the exclusion of unfair evidence. The Human Rights Act 1998 and Article 6 of the European Convention on Human Rights provide important wider context for fair-trial principles.

Conclusion

Evidence in criminal trials is governed by rules that seek to balance the effective investigation and prosecution of crime with the need for reliable evidence and fair proceedings.

The hearsay provisions of the Criminal Justice Act 2003 recognise that statements made outside court may be valuable, while regulating the circumstances in which they can be used. The provisions governing confessions recognise that an admission may be significant but must not be accepted without regard to the conditions in which it was obtained. Section 78 PACE provides a further safeguard where admitting prosecution evidence would undermine the fairness of the proceedings.

These principles are related, but they are not interchangeable. Each requires the court to identify the relevant legal issue, apply the appropriate statutory test, and consider the evidence in the context of the case.

The central lesson is that criminal justice depends not only on what evidence appears to show, but also on whether the law permits it to be used and whether the process through which it is considered remains fair. A sound evidential framework helps protect against wrongful convictions, supports the proper administration of justice, and preserves the legitimacy of criminal proceedings in England and Wales.