Criminal Justice Act 2003, section 126

Court’s general discretion to exclude evidence

Part 11 Evidence

(1)In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if—

(a)the statement was made otherwise than in oral evidence in the proceedings, and

(b)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.

(2)Nothing in this Chapter prejudices—

(a)any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or

(b)any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).

Definitions used in section 126 3

criminal proceedings

“criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

Defined in s.134(1) · see it in the full Act
the court

(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.

Defined in Sch.22 para.11(2) · see it in the full Act
oral evidence

“oral evidence” includes evidence which, by reason of any disability, disorder or other impairment, a person called as a witness gives in writing or by signs or by way of any device;

Defined in s.134(1) · see it in the full Act

Cases considering section 126 36

R v Horncastle and others (on appeal from the Court of Appeal Criminal Division)

[2009] UKSC 14 · 9 December 2009Limits

The provision preserves the judge's power to exclude prosecution evidence prejudicing trial fairness and additionally requires exclusion where satellite disputes would waste disproportionate time (see para [36]).

R v Courtney McLeary & Anor

[2026] EWCA Crim 903 · 15 July 2026

The court applied section 126 and held that exclusion was not required because the defence could challenge reliability and the trial remained fair. (see paras [29]-[30]; [46]-[47]; [54]) The court confirmed, through the cited statutory analysis, that section 126(2) preserves the power to exclude evidence under section 78. (see para [25])

R v John McNair

[2025] EWCA Crim 1376 · 3 October 2025

Applies section 126 and holds that the admitted hearsay should not be excluded on that basis. The trial remained fair when considered with the appropriate directions and the other evidence. (see paras [45]-[46]; [52])

16 more judgments, and what each says about section 126, are in the case-law panel in the full Act.

Explanatory note

424.This section provides a further discretion to exclude superfluous out of court statements if the court is satisfied that the value of the evidence is substantially outweighed by the undue waste of time which its admission would cause. Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect is out of proportion to its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I81S. 126 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)