202302376 B1 - [2025] EWCA Crim 1036

It was agreed before us, as it was before the judge, that a statement by a deceased person which says that a defendant confessed their guilt to them is “multiple hearsay” for the purposes of section 121 of the 2003 Act. It was therefore to be excluded unless the court decided that section 121(1)(c) was satisfied (sub-sections (a) and (b) being immaterial). This allows a statement to be admitted to prove the fact that an earlier hearsay statement was made if:-

“the court is satisfied that the value of the evidence in question, taking account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admitted for that purpose.”

A confession is a hearsay statement for this purpose, see section 121(2).

The court has what is described in the sub-heading to section 126 of the 2003 Act as a “general discretion to exclude evidence”. Section 126(1)(b) provides that this arises where:-

“The court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.”

It seems highly unlikely that a statement which was admitted under section 121(1)(c) would then be excluded under section 126, and we do not propose to consider section 126 separately.

Section 78 of the Police and Criminal Evidence Act enables the court to exclude prosecution evidence if it considers that its admission would have an adverse effect on the fairness of the proceedings. This power is not, of course, limited to hearsay evidence but is preserved in the case of hearsay by section 121(2)(a) of the 2003 Act. This did require separate consideration on the facts of this case.

Section 125 of the 2003 Act applies in this case because the case against the appellant was based wholly or partly on a statement not made in oral evidence in the proceedings. It requires the court to stop the case if it is satisfied at any time after the close of the case for the prosecution that the “evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe”. The words “unconvincing” and “unsafe” describe legal tests which are different from that which is the standard test for trial judges to apply in deciding whether a case should be left to the jury. That test is usually referred to in shorthand as the Galbraith limb 2 test, as explained in F(S) [2011] EWCA Crim 1844; [2011] 2 Cr App R 28 at [36] and [37]:-

“36 The authority of Galbraith (1981) 73 Cr. App. R. 124; [1981] 1 W.L.R. 1039, with its emphasis on the responsibilities of the jury as the fact-finding body responsible for delivering the verdicts, is undiminished. The principles have neither been modified nor extended for the purposes of addressing trials which involve historic unreported sexual crimes. In accordance with the second limb of Galbraith there will continue to be cases where the state of the evidence called by the prosecution, and taken as a whole, is so unsatisfactory, contradictory, or so transparently unreliable, that no jury, properly directed, could convict. In cases like these it is the judge's duty to direct the jury that there is no case to answer and to return a “not guilty” verdict. But in making this judgment, the judge must bear in mind the constitutional primacy of the jury, and not usurp its function.

37 It is no doubt true that cases of long delayed allegations, whether in the field of sexual offences or otherwise, impose the requirement for special care if this question arises for consideration. Judges will find it easier to ensure that submissions of “no case” concentrate on correct principles if expressions such as “safe to convict” or “safely left to the jury” are avoided. The test enunciated in Galbraith is clear. If the jury does convict, and the conviction may be unsafe, it must be dealt with in this court.”

The statute therefore affords a particular protection for defendants in the case of a prosecution case which depends wholly or substantially on hearsay in which the judge is required to do something which is strictly forbidden in most other situations (Footnote: ¹), namely to take a view on the safety of any conviction which may result.

If the statement is admitted, and the case is not stopped under section 125 of the 2003 Act, then the judge is required to direct the jury in a way which will assist them in their duty to test and assess any hearsay material. In R. v Riat [2012] EWCA Crim 1509; [2013] Cr. App. R. 2 at [3] the court said this:-

“As everybody knows, the CJA 2003 gave effect to the report of the Law Commission, itself the product of long consultation and deliberation. The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness’ interview, that person cannot be asked a single exploratory or challenging question about what is said. From the point of view of a defendant, the loss of the ability to confront one’s accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interests of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe.”

In R. v BOB [2024] EWCA Crim 1494; [2025] 1 Cr. App. R. 14 this court said:

“7.

If the evidence is admitted, then should the case subsequently be stopped under s.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 s.125.”

BOB was decided after the trial in this case, and the judge did not therefore have the benefit of its observations either about the duty to consider section 125 in this case whether invited to do so or not, or about the type of direction which is required in such a case.