(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a)any provision of this Chapter or any other statutory provision makes it admissible,
(b)any rule of law preserved by section 118 makes it admissible,
(c)all parties to the proceedings agree to it being admissible, or
(d)the court is satisfied that it is in the interests of justice for it to be admissible.
(2)In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
(a)how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d)the circumstances in which the statement was made;
(e)how reliable the maker of the statement appears to be;
(f)how reliable the evidence of the making of the statement appears to be;
(g)whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h)the amount of difficulty involved in challenging the statement;
(i)the extent to which that difficulty would be likely to prejudice the party facing it.
(3)Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.
395.Subsections (1)-(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it. For example, if B was charged with robbery of a jewellers, the prosecution might want A to testify that B told her that he was “outside the jewellers at midday on Monday” in order to prove that B was outside the jewellers at the relevant time. As these subsections remove the common law rule against the admission of such hearsay evidence, this out-of court statement will be admissible in A’s testimony, provided it comes under one of the following heads:
It is admissible under a statutory provision;
It is admissible under a common law rule preserved by this Chapter of Part 11 of the Act;
The parties agree that it can go in; or
The court gives leave to admit the statement.
396.Before the court can grant leave to admit such a statement (under the fourth head above and found in subsection (1)(d)), it must be satisfied that it is in the interests of justice to admit the evidence. The intention, therefore, is that the court should be able to admit an out-of-court statement which does not fall within any of the other categories of admissibility, where it is cogent and reliable.
397.Subsection (2) sets out some of the factors that the court must consider when deciding whether to grant leave under the discretion in Subsection (1)(d). Some of these factors are:
the degree of relevance of the statement in proving a matter in issue in the trial (assuming the statement to be true);
the circumstances in which it was made (if indeed it was made at all);
the extent to which it supplies evidence which would not otherwise be available;
the creditworthiness of the maker of the statement;
the reason why oral evidence cannot be given;
the extent to which the other party can challenge the statement, and the risk of unfairness.
398.The list is intended to focus attention on whether the circumstances surrounding the making of the out of court statement indicate that it can be treated as reliable enough to admit it as evidence, despite the fact that it will not be subject to cross-examination.
399.Subsection (3) provides that out of court statements may still be excluded even if they fulfil the requirements in this Chapter. For example, confessions must meet the additional requirements of sections 76 and 78 of the Police and Criminal Evidence Act 1984 before admission.