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You are here: BAILII >> Databases >> The Law Commission >> Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(10) (19 June 1997)
URL: http://www.bailii.org/ew/other/EWLC/1997/245(10).html
Cite as: [1997] EWLC 245(10)
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PART X
PREVIOUS STATEMENTS BY WITNESSES
10.1 In this Part we consider the cases where the party calling a witness seeks to use a previous statement by the witness. First we consider the admissibility of a statement which is consistent with the witnesss oral evidence, (1) and then that of a statement which stands in for or supplements the oral evidence (2) (for example, where the statement is used to refresh the witnesss memory). Finally we look at previous statements which are inconsistent with the oral evidence of the person who made them, and their use in cross-examination. (3)
PREVIOUS CONSISTENT STATEMENTS
Summary of the present law
The rule
10.2 A statement to the same effect as the witnesss oral evidence is inadmissible as evidence of what it states. This is an aspect of the rule against hearsay, and is subject to the exceptions to that rule for example, where the previous statement forms part of the res gestae. (4) What we called in the consultation paper (5) the rule against previous consistent statements (and what others have called the rule against narrative) is the rule that such a statement cannot even be used to enhance the credibility of the witnesss oral evidence, by demonstrating the consistency of his or her story. This rule is subject to several exceptions.
Exceptions to the rule
TO REBUT A SUGGESTION OF LATE INVENTION
10.3 First, evidence of what a witness said early on may be given to rebut a suggestion that his or her story is a "late invention". (6) In this case, the previous statement is not evidence of the truth of its contents, and is supposed to be used on the issue of the witnesss credibility alone.
10.4 This exception is of limited value, as the mere fact that a witnesss testimony is impeached in cross-examination will not automatically make such evidence admissible. (7) This remains true "even if the impeachment takes the form of contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion". (8) If it is put to a witness that his or her testimony is fabricated or mistaken, merely pointing to an earlier occasion when the witness made the same allegation is no answer. If, however, it is put to a witness that, for example, he or she has colluded with the defendant, and the witness can point to an earlier statement which predates the date of the alleged collusion, then, in the words of Dixon CJ, (9) the earlier statement "rationally tends to answer the attack". (10)
PREVIOUS IDENTIFICATION
10.5 A second exception is "evidence admitted in criminal trials from time immemorial of the identification of the accused [by witnesses] out of court". (11) The rationale for admitting evidence of such identifications is "to show that the [witness] was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake". (12)
10.6 In recent years, this exception has been extended to the case where the victim composed a Photofit that looked just like the accused, (13) or guided a police artist to draw the persons likeness in a sketch. (14) (These developments make it seem distinctly anomalous that the court is not permitted to receive evidence of the words the witness used to describe what the attacker looked like, evidence which the hearsay rule would certainly exclude.)
10.7 This exception applies even where the witness does not repeat the identification while giving evidence in which case, strictly speaking, the earlier identification is merely a previous statement and not a previous consistent statement. However, the usual practice is for the witness to confirm the earlier identification, and so we consider this exception here.
RECENT COMPLAINT
10.8 The best known exception to the rule against previous consistent statements is "recent complaint". (15) Where the defendant is charged with a sexual offence, (16) and the complainant has given evidence about the alleged offence, (17) the court can hear the terms of the original complaint, provided it was made spontaneously and at the first reasonable opportunity; (18) the court may also hear evidence to explain why the alleged victim did not tell anyone, if that is an issue. (19)
10.9 "Spontaneously" was explained by Ridley J as meaning that this exception applies "only where there is a complaint not elicited by questions of a leading and inducing or intimidating character". (20) Ridley J also said:
[T]he mere fact that the statement is made in answer to a question in such cases is not of itself sufficient to make it inadmissible as a complaint. Questions of a suggestive or leading character will, indeed, have that effect, and will render it inadmissible (21)
10.10 This dictum was later explained thus:
The court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. (22)
Justifications and criticisms of the rule against previous consistent statements
10.11 The main justification for the hearsay rule, namely the impossibility of cross-examining the declarant, clearly has no force where the witness testifies and is available for cross-examination. It can therefore be argued persuasively that courts could safely be more liberal in admitting previous statements than in admitting statements where the declarant does not testify.
10.12 The main reason for the rule against previous consistent statements is that the evidence would be at least superfluous, for the assertions of a witness are to be regarded in general as true, until there is some particular reason for regarding them as false. Cross and Tapper explains:
The necessity of saving time by avoiding superfluous testimony and sparing the court a protracted inquiry into a multitude of collateral issues which might be raised about such matters as the precise terms of the previous statement is undoubtedly a sound basis for the general rule. (23)
We agree.
10.13 An associated reason is that if previous statements are admitted, the focus of the trial moves from the oral testimony to the statements. Where the quality of the previous statements is doubtful, this consideration has particular force. (24) The merits of oral evidence were described in Butera v DPP: (25)
A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jurys estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jurys discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.
10.14 Although we would not endorse this assessment in every particular, (26) we share the concern to maintain the traditional emphasis on oral evidence. However, we also think it undesirable that evidence should be kept from the court where it is of better quality than the oral evidence available at trial, thus giving a false impression of the quality of that oral evidence.
10.15 A further concern has been the risk that, if the rule against previous consistent statements were abolished, previous statements could easily be manufactured. (27) But our general approach is that, where the witness is available to be asked about the circumstances in which the earlier statement was allegedly made, the risk of manufacture should go to weight, not admissibility.
Criticisms of the exceptions
SUGGESTION OF LATE INVENTION
10.16 Two criticisms must be made of this exception. First, it is limited in scope: it applies only where it is suggested that the witnesss oral evidence is a "late invention". The mere fact that the witnesss credibility is attacked by reference to a previous inconsistent statement does not entitle the witness to refer in turn to previous consistent statements which might redress the balance for example where the inconsistent statement was a retraction made under pressure, but the consistent statements were freely made. (28)
10.17 Secondly, the fact-finders are once again expected to appreciate the subtle distinction between treating the statement as evidence of its contents and as evidence that the witness is telling the truth when he or she gives evidence to the same effect. This is probably too much to expect. To say that a witnesss previous statement of x is not probative of x, but makes the witnesss evidence of x more credible, seems to us to be a distinction without a difference.
10.18 As we have seen, this exception comes into play only in very limited circumstances. But if it were to be extended for example, to allow a previous statement to be admitted to bolster oral evidence whenever it transpired in cross-examination that the witness had at some time made a statement conflicting with the oral evidence the effect would be to let in most previous statements. This would approach option 2, which we consider, and reject, at paragraphs 10.30 10.34 below.
PREVIOUS IDENTIFICATION
10.19 In regarding what is said outside the courtroom as inferior to what is said in the witness box, the rule against previous consistent statements assumes that the truth of the earlier identification is immaterial and that it only supports the evidence given in court. This is a fiction because it is really at the earlier identification (whether immediately after the crime, at an identification parade or in the course of one of the other procedures set out in the Code of Practice) (29) that the witness makes the judgment that the person picked out is the offender. The subsequent identification in court is something of a formality. Indeed, the courts have cautioned against permitting identifications made in court for the first time, (30) let alone relying on them. It is the out-of-court identification that is significant. If the witness can pick out the accused in court, that may or may not enhance the earlier identification, depending on the circumstances.
10.20 Given that the person making the identification is available to be asked about the circumstances of the original sighting (and about any loss of memory) and that the true identification is that made before the trial, there does not seem to be any sound reason for excluding available evidence of the earlier identification, whether or not it is repeated in court; nor for saying that, when it is admissible, it goes only to credibility.
10.21 We noted in the consultation paper that the identification exception extends only to identifications of people, and referred to cases such as Jones v Metcalfe (31) as revealing a deficiency in the law. (32) Thus, where it is sought to establish the registration number of a car involved in an incident, and an eye-witness A, who saw the incident, related the number to B, who did not, it is inadmissible hearsay for B to tell the court what the number was for the purpose of proving which car was involved. Our recommendations 35 and 38 are designed to address this problem. (33)
RECENT COMPLAINT
10.22 The purpose of this exception is to support the credibility of the witness. The exception is limited to sexual offences. Not only does this limitation give rise to anomalies, (34) but it might be thought equally important for the court to know the terms in which the alleged victim complained, whatever the nature of the offence. The rationale for the limitation is that independent evidence is unlikely to be available, and more will depend on the testimony of the parties in sexual offences than in non-sexual offences. (35)
10.23 A second objection is that the rule makes necessary a convoluted direction, which the CLRC described as "wholly unrealistic and difficult for a jury to appreciate", (36) to the effect that a "recent complaint" is not evidence that the alleged victim was assaulted, but merely evidence that he or she is now telling the truth when repeating the complaint.
10.24 A third objection which we noted in the consultation paper (37) is that the exception is limited to complaints spontaneously made "at the first opportunity after the offence which reasonably offers itself". (38) Although the particular circumstances of the complainant are taken into account in deciding what was the "first reasonable opportunity", the complaint must have been made "as speedily as could reasonably be expected". (39) This rule seems to be based on the idea that the natural reaction of any genuine victim of a sexual offence is to tell someone immediately; but research clearly shows that most victims are too embarrassed to tell anyone, let alone to do so spontaneously and early. (40) Many victims will therefore find their evidence cannot be supported by telling the court the terms of their original complaints.
10.25 Since the consultation paper was published the common law has developed so that this objection does not have the force it once had. Following Valentine, (41) a court will now take into account the personal circumstances of the complainant when ruling on whether the complaint was made at the first reasonable opportunity.
10.26 A fourth objection is that the current law makes the complaint inadmissible if it was "assisted". In our view, complainants of sexual offences are often reluctant to say what has happened, and do not speak easily and freely; they may well have to be helped to articulate the complaint. That of itself should go to weight, and not to admissibility.
The options and the response on consultation
10.27 In the consultation paper we considered three options, namely, retaining the present law, (42) allowing all previous consistent statements to be admissible, (43) or (the preferred option) permitting previous consistent statements to be admitted as evidence of the truth of their contents in certain specified circumstances. (44) We now propose to review each of those options in the light of the responses received on consultation.
Option 1: retain the present law
10.28 We provisionally rejected this option because of the defects in the law. (45) Cross and Tapper criticises the rule, accurately in our view, for
its inconsistency with other rules, its illogicality, its capacity to prejudice the accused, its arbitrary scope, and the resentment created by allowing the credibility of one of the parties to the dispute to be bolstered, but not that of the other. (46)
10.29 On consultation, a large majority of respondents agreed that this option should be rejected. Those who preferred this option did not persuade us that no improvement is needed to this area of law.
Option 2: all previous consistent statements to be admissible
10.30 The CLRC recommended the abolition of the rule against previous consistent statements, and in Scotland it has been severely restricted in scope. (47) In spite of these weighty precedents, we felt obliged to reject this option in the consultation paper. (48) We believed that it would allow any number of previous consistent statements to be admitted where they add little or nothing, and that the fact-finders would be distracted from the more important evidence. Defendants might be tempted to make many denials in the hope that their sheer volume would impress a lay tribunal. We were also concerned that the fact-finding body would not be assisted by the statements. One respondent pointed out that we had said in the consultation paper that the hearsay rule wastes court time by requiring evidence to be given orally which could be more easily, quickly and cheaply presented in written form, (49) and queried why we did not apply this argument here. It seems to us that this option would increase the total amount of evidence put before the court, not simplify the form in which it was adduced, and so there would be no saving of court time.
10.31 On consultation our view was accepted by a large majority of those who commented, but there was powerful support for this option from two distinguished academics. Professor John Spencer wrote that the rule requires us "to accept two remarkable scientific propositions: first, that memory improves with time; and secondly, that stress enhances a persons powers of recall." He found the argument that court time would be wasted "very unconvincing". (50) His views were supported by Dr Andrew L-T Choo. (51)
10.32 These views were not shared by the other respondents, many of whom took the very strong view that this option would let in large quantities of unnecessary and irrelevant material. They stressed that only relevant evidence is admissible, and that any reform of the rule against previous statements should not invite irrelevant evidence. It is, of course, already within the power of the court to exclude insufficiently relevant evidence, (52) and statements which add almost nothing to the oral testimony are likely to be insufficiently relevant. Therefore, if the rule against previous statements were abolished, only those previous statements that did in fact add value, or enhance the witnesss credibility, would become admissible. But there might be an increase in the number of marginally relevant statements admitted at trial if this option were adopted.
10.33 We considered this option in the light of the argument that the court would not permit previous statements to be admitted unless they were relevant. We foresee long arguments on the relevance of particular statements, and we believe a better way would be to define the cases where such evidence could be relevant, such as to rebut an allegation of recent invention.
10.34 Those who opposed this option were also concerned that trials would focus on statements in documents, rather than on oral evidence. This concern gains force from the doubts about the quality of witness statements generally. We find the reasoning of those unhappy with this option very persuasive, and have therefore decided to reject it.
Option 3: a witnesss previous statement to be admissible as evidence of the truth of its contents only in certain specific circumstances
10.35 This was our preferred option in the consultation paper. (53) It would differ from the existing law in that, where the previous statement was admissible, it would be admissible as evidence of the facts stated, and not merely to bolster the credibility of the witnesss oral evidence. In other words it would amount to an exception to the rule against hearsay, and not (as at present) only to the rule against narrative.
10.36 A large majority of the respondents who commented supported this option. Some respondents were disturbed by the prospect of previous statements going not only to credibility but also to the issues, because, in their view, this would amount to the substitution of an out-of-court statement for sworn evidence. Where (as in the exceptions we propose) the witness is available to testify, it seems to us that the previous consistent statement will add to the oral evidence, not replace it. (54) And the witness is, of course, available to be cross-examined on both the earlier statement and the oral evidence in chief.
10.37 We believe that this option would not entail any breach of the Convention. The Strasbourg Commission held that there had been no breach of Article 6(3)(d) of the Convention (55) where, in the Danish Court of Appeal, a witnesss earlier statement made at the City Court was simply read out and he was asked to confirm or deny that he stood by the statement. The Commission held that this practice might reduce the value of the evidence but was not impermissible because there was an opportunity to ask further questions at the appeal stage. (56)
10.38 For these reasons, we consider that this option strikes the right balance between maintaining an emphasis on oral evidence and preventing relevant evidence being kept from the fact-finders. We conclude, therefore, that a previous statement by a witness should be admissible, not only to support the witnesss credibility but also as evidence of the truth of what it states, in the following cases: (57)
(1) a statement adduced to rebut an allegation of recent invention;
(2) a prior identification or description of a person, object or place; and
(3) recent complaint.
General considerations
10.39 There are two aspects to the recommended option: first, the recommended exceptions to the general exclusionary rule, which are set out in detail at paragraphs 10.41 10.61 below; and second, the recommendation that, when the previous statement is admitted under one of these exceptions, it should be evidence of its truth and should not go merely to the credibility of the witness. We consider in relation to each of the recommended exceptions the use that may be made of a statement falling within the exception. But we may say here that the argument is the same in two of the three cases (the exception being prior identifications): that the distinction between treating a statement as evidence on the issues and evidence as to credibility is one which is likely to cause confusion, particularly with juries, and it should for that reason be dispensed with. We do not believe that fact-finders (especially juries) can distinguish between using previous statements to show consistency and as evidence of their truth.
10.40 The following considerations apply to previous statements admitted under any of the exceptions we recommend.
(1) The statement may be oral or contained in a document.
(2) The witness must not have been incompetent as a witness for the party calling him or her at the time the statement was made.
(3) Where it is the prosecution that seeks to adduce the previous statement, it will be open to the court to exclude it pursuant to the common law discretion, or under section 78 of PACE if it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This may arise where the probative value of the statement is slight, but its capacity to prejudice the fact-finders against the defendant is great.
(4) If the content of the previous statement is inadmissible for some reason other than the fact that it is hearsay (for example, because it is prejudicial), it will remain inadmissible.
(5) As regards statements which are partly consistent and partly inconsistent with the oral evidence, the whole of the statement may be considered as evidence. (58)
We now turn to the detail of the recommended exceptions.
THE RECOMMENDED EXCEPTIONS
To rebut a suggestion of late invention
10.41 In the consultation paper we put forward the provisional view that, if it is contended that an allegation is an afterthought, the witness should be entitled to have any previous statement put before the court, so that the fact-finders would have all the available information before them and would be able to ascertain whether an allegation is a recent invention. (59) This view received the support of a large majority of the people who commented on it.
10.42 Some respondents thought that we overestimated the injustices caused by this exception. Buxton J pointed out that the suggestion of recent invention is rebutted by a previous statement whether its contents are true or not. It would therefore be illogical to turn this exception to the rule against previous consistent statements into an exception to the hearsay rule, and more complications would result.
10.43 A factor which we think should be taken into account is that the defence may be deterred from cross-examining on a previous statement if to do so would result in a number of previous statements consistent with the witnesss oral evidence being admitted in evidence. It seems to us undesirable to deter proper cross-examination.
10.44 Reform of this exception has to be considered in tandem with our recommendation that where a previous inconsistent statement is admitted, it should be evidence of the truth of its contents. (60) On the one hand, one might argue that the inconsistent statement is balanced by the oral evidence, and any previous consistent statement could safely be left to go only to credibility, insofar as the distinction has any meaning in the individual case. On the other hand, it could be potentially unfair if an inconsistent statement were admitted as an exception to the hearsay rule, but a contradictory statement, which was consistent with the oral evidence, went only to credibility. We prefer this latter view, and think also that it would be positively undesirable for the fact-finders to be encouraged to think that a statement is made more credible by repetition.
10.45 We have concluded that the circumstances in which this minor exception can be used are best left alone, but that, where a statement is admitted under it, it should go to truth and not be restricted to credibility. We recommend that where a previous statement by a witness is admitted as evidence to rebut a suggestion that the witnesss oral evidence has been fabricated, that statement should be admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (61) (Recommendation 34)
Evidence of a previous identification or description of a person, object or place
10.46 We have set out above the problems with the current law. (62) In summary, they are as follows. First, it is a fiction that the earlier identification supports the identification made in court; second, the same principle extends to out-of-court identifications of objects; and third, it is anomalous that the words used to describe a person are not admissible while a picture of that person is. In the consultation paper we proposed that a witnesss previous statement should be admissible, as evidence of the truth of its contents, where it constitutes a previously made identification or description. (63)
10.47 On consultation, a large majority of the respondents who commented on this proposal were in favour. The principal objection, voiced by the Wales and Chester Circuit, was to out-of-court evidence being admitted as evidence of its truth rather than going simply to credibility, for fear that the trial would centre on written statements and not on the oral evidence. As we have said, in this instance it is not simply a matter of a fine distinction between evidence and non-evidence: rather, it is a fiction that the out-of-court identification plays only a supporting role. Nevertheless, as we wish to keep the focus of the trial on the oral evidence, we suggest that the witness be required to confirm that, to the best of his or her belief, he or she made the out-of-court statement and it was true.
10.48 As regards the identification of objects, a problem tends to arise when the identifying features of the object are of a kind which a witness cannot easily remember, such as an identification number or a car registration number. In this instance, the previous statement is not strictly speaking consistent with the oral evidence but supplements it, filling in gaps; and the use of a previous statement to fill gaps in the witnesss oral evidence is considered at paragraphs 10.63 10.80 below. But the problem is relevant in the present context because the underlying principle is the same: the true identification, whether of a person or a car, is that made outside the court room.
10.49 Where the witness has not learnt the identifying feature of the object by heart (a practice which is not particularly recommended), he or she may seek to refer to a document in which it is written down. That document is hearsay, but if it was written contemporaneously, either by the witness or at his or her dictation and checked by him or her, the witness may use the document to "refresh his or her memory", and recite the number to the court. This is not possible where the statement was not contemporaneous, or the witness did not check the number dictated, (64) or it was not written down at all but another witness claims to remember what the first witness said it was.
10.50 The question is whether the out-of-court identification of objects should be permitted in the same way as identifications of people, or whether the problem is better dealt with by our recommended exception for the witness who can no longer remember relevant details. The latter exception would solve most of the difficulties that arise in relation to the identification of objects, but in our view it would be anomalous to exclude that case from the present exception. It would mean that a witness could give admissible evidence of a previous identification of a person, even if he or she could remember clearly the physical characteristics of the person identified, but could not give evidence of a previous identification of an object unless he or she could not reasonably be expected to remember the characteristics of the object. We have therefore concluded that the present exception should extend to the identification of objects (and places) as well as people.
10.51 The third problem to which we have referred is the anomaly that a picture or sketch of a person may be admitted, but words previously used by the witness to describe that person may not. It is to overcome this anomaly that we propose that a previous description be admitted in evidence.
10.52 We recommend that, where
#1(1) a witness has made a previous statement which identifies or describes a person, object or place, and
#1(2) while giving evidence the witness indicates that to the best of his or her belief he or she made the statement, and it states the truth,
the statement should be admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (65) (Recommendation 35)
Recent complaint
10.53 We take the view that the exception of "recent complaint" should be retained in a form which would meet the criticisms of the present law. As we saw above, (66) there are four problems with the current form of this exception. First, it is confined to sexual offences. Second, it makes little sense to distinguish between evidence being directly probative of the facts asserted and being merely supportive of the oral testimony. Third, a complaint is inadmissible unless made at the first reasonable opportunity. Finally, a complaint is inadmissible if it was "assisted".
10.54 There is an argument that it is useful to know the terms in which the original complaint was made, whatever the nature of the offence, (67) and the first question is whether this is in fact the case. We referred in the consultation paper to research which shows that the most accurate account of an event is more likely to be given shortly afterwards than at trial, (68) and that the account may be "contaminated", however unwittingly, by the person to whom it was made, (69) or simply changed by the act of repeating it. (70) It is true, however, that the first statement may not always be the most accurate. On consultation, the Criminal Bar Association commented that later statements tend to be more detailed and complete than early statements. (Judge Graham Jones suggested that the evidence of important witnesses should be recorded on video as soon as possible, and used as their evidence in chief.)
10.55 Although conscious of the potential dangers of admitting the original complaint, we take the view that the version recollected at trial is not likely to be any more accurate after all, many witnesses will remind themselves of their evidence by reading their witness statements before they testify and at least the witness is available to be cross-examined.
10.56 We do not see any justification for limiting this exception to sexual offences, and we recommend that this limitation be removed.
10.57 As we state above, (71) the direction to a jury that the complaint serves only to show that the witness is now telling the truth, and may not itself be taken as evidence of what happened, is unrealistic. We therefore take the view that, where a previous complaint is admissible at all, it should be treated as evidence of the truth of its contents, and not merely to support the witnesss credibility.
10.58 As we state above, (72) the common law has moved on since the consultation paper was completed, and the courts can now take a more liberal view of how soon a complainant can be expected to make a complaint. We therefore recommend no change to the existing requirement that the complaint be made as soon as could reasonably be expected.
10.59 We note above that, in our view, the fact that a complainant has been helped to articulate his or her complaint should go to weight and not to admissibility. (73)
10.60 We recommend that, where
(1) a witness claims to be a person against whom an offence to which the proceedings relate has been committed,
(2) the witness has made a previous statement which consists of a complaint about conduct which would, if proved, constitute the offence or part of the offence,
(3) the complaint was made as soon as could reasonably be expected after the alleged conduct,
(4) the complaint was not made as a result of a threat or a promise,
(5) before the statement is adduced the witness gives oral evidence in connection with its subject matter, and
(6) while giving evidence the witness indicates that, to the best of his or her belief, he or she made the statement and it states the truth,
the statement should be admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (74) (Recommendation 36)
10.61 Before leaving this exception, it may be helpful to explain the interaction between it and section 78 of PACE. There may be cases where, although evidence of the complaint is prima facie admissible under this exception, the court will exercise its discretion to exclude the statement because it would have such an adverse effect on the fairness of the trial. For example, if the issue in a sexual assault case is that of identity, and the complaint sheds no light on that issue, the details of the complaint will have little probative value and could be highly prejudicial. In such a case the defendant would be protected by the exclusion of the evidence under section 78.
Documentary statements as exhibits
10.62 We are aware of the danger that written statements may make more of an impression upon fact-finders, particularly upon jurors, than oral evidence. Some previous statements of witnesses will be contained in documents, and, once admitted or proved, they become exhibits in the case. The normal practice is for the jury to take exhibits with them when they retire. This is unlikely to be appropriate as a matter of course for a witnesss previous statements. We believe that where such statements are contained in documents they should not automatically be taken into the jury room, but that the court should have a discretion to permit this where appropriate. We recommend that where a statement previously made by a witness in a document is admitted, the document should not accompany the jury when they retire to consider their verdict, unless the court considers it appropriate or all the parties to the proceedings agree that it should accompany the jury. (75) (Recommendation 37)
PREVIOUS STATEMENTS WHICH TAKE THE PLACE OF OR SUPPLEMENT ORAL TESTIMONY
Inability to remember
The present law
10.63 A witness may refresh his or her memory from a statement in a document made contemporaneously with the events it concerns and while the facts were fresh in his or her memory. If the statement was recorded by someone else, the witness may nevertheless make use of it if the witness verified or adopted the statement. (76) The document does not become an exhibit merely because a witness refreshes his or her memory from it.
10.64 Where the statement was not made contemporaneously, the law used to be governed by Da Silva. (77) The Court of Appeal there held that a judge has a discretion, to be exercised in the interests of justice, to allow a witness to refresh his or her memory from a non-contemporaneous statement, provided
(1) that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place; (2) that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it; (3) that he had not read the statement before coming into the witness box; (4) that he wished to have an opportunity to read the statement before he continued to give evidence.
The witness was not to be allowed to hold on to the statement while giving evidence, as would be the case if it were contemporaneous. (78)
10.65 The rules laid down in Da Silva have recently been relaxed in ex p Cochrane, (79) so that a witness may now refer to a non-contemporaneous statement even if the witness had read it before coming into the witness box. In that case, the witness had not taken in the contents of his statement when he read it because he was afraid of facing the defendants.
Criticisms of the present law
10.66 Sight of the earlier statement may or may not refresh the witnesss memory; in some cases there may be no actual recollection, but the witness is able to read the details in the statement and fill in the gaps. It may be a fiction that it is the oral evidence that counts; the best evidence may well be the earlier statement. If the witness cannot remember the matters stated even with the help of the statement, the statement is effectively hearsay.
10.67 In some cases that best evidence may be lost to the court entirely, for example where the statement was written down by someone other than the witness and not checked by the witness, (80) or where even reading the statement prompts no recollection of the events. (81) One may take the view that, even if the evidence is the best available, because it was not checked by the witness it is of such poor quality that the hearsay rule rightly excludes it. On the other hand, one may say that it is better than nothing, and that the circumstances in which it was created should not go to admissibility but only to weight.
10.68 Some anomalies are thrown up by the present law. For example, the situation described in the preceding paragraph can be avoided if the evidence concerns an identification. (82) Although the principle is the same even if the forgotten detail is not an identification, the law treats the two situations differently. A second example is the use of a different exception to the hearsay rule to let the evidence in, "by the back door" as it were. (83)
10.69 Finally, as one respondent (84) wrote, "It is quite absurd that a witness can read his non-contemporaneous statement outside the court and then rush into court and give evidence in accordance with that statement, yet not be able to use it in court to refresh his memory." This absurdity is now mitigated by ex p Cochrane, (85) but elements of it may still persist.
The option provisionally proposed and the response on consultation
10.70 In the consultation paper we proposed that a previous statement of a witness should be admitted, as evidence of its truth, where the witness is unable to remember details contained in a statement which the witness had made or adopted when the details were fresh in his or her memory and it is unreasonable at the date of trial to expect the witness to be able to recall them. (86) We took the view that this option would ensure that evidence which is of sufficient importance to be worthy of consideration by the fact-finders would be admissible. It would also recognise the difficulty that witnesses have in remembering detailed evidence.
10.71 If such statements were admissible, the witness could of course be cross-examined on the truth of the contents of the earlier statement and the circumstances in which it was made, and contradictory evidence could be led about the matters dealt with in the statement. Any objection could be taken, to the statement or any part of it, and any question put to the witness, which could properly have been taken or put if the witness had given the evidence in chief in the ordinary way.
10.72 On consultation a large majority of those who commented were in favour of this proposal. Those who did not favour our proposal were concerned about a written statement forming part of the evidence and the danger that the trial would proceed on the basis of written statements, not oral evidence. One respondent (87) said that if such a statement is accusatory, the defendant should have the right to cross-examine the witness when the statement is made or shortly afterwards. Another respondent (88) thought the words "and it is unreasonable at the date of trial to expect the witness to be able to recall them" added an unnecessary complication; but we do not think it would be acceptable for a witness to be permitted to refer to a previous statement about a matter which the witness ought to be able to remember.
Our recommendations
ADMITTING THE WITNESSS PREVIOUS STATEMENT AS EVIDENCE OF ITS TRUTH
10.73 In our view the rules applicable in this situation should be as follows. First, the fact that the witness (W) has to rely on another person (X), (89) or a document, or both, to fill in details which she can no longer recall, should go to the weight of the evidence of those details but should not in itself make it inadmissible. (90) This is so whether W recorded the details in person, or X recorded what W said they were, or X gives evidence of what W said they were.
10.74 However, in order to exclude previous statements of inadequate reliability, Ws previous statement should not be admissible unless
(1) she made it when the details were fresh in her memory;
(2) she does not, and cannot reasonably be expected to, remember them well enough to give oral evidence of them; and
(3) she adopts it, in the course of her evidence, as her statement. In other words she must indicate that, to the best of her belief, she made the statement and it is true. (91)
10.75 If these requirements are satisfied, we believe that the statement should be admissible. This means it would be possible to prove what W then stated the now-forgotten details to be. The terms of the previous statement could be proved in various ways. Where W made the statement in a document, for example (which includes verifying and acknowledging a document in which X had recorded the terms of Ws oral statement), it could be proved by producing the document, or a copy of it. Where the statement was neither made in a document nor recorded, it could be proved by calling a witness who heard it and remembers it.
10.76 Where the statement was oral and was recorded in a document by X, but W did not verify and acknowledge it, we believe it should be possible to rely on the document as proof of what she said. Under our draft Bill this result would be achieved by treating Xs record as a statement by X, and therefore admissible subject to the conditions set out in paragraph 10.74 above. In other words X must have made the record when Ws statement was fresh in his memory; it must not be reasonable to expect him to remember it well enough to give oral evidence of it; and he must confirm that, to the best of his belief, the document is an accurate record of what W said.
10.77 If X fell within the unavailability exception his statement would be automatically admissible, without having to prove that it was made when Ws statement was fresh in Xs memory. (92) Although his statement is multiple hearsay (being evidence of Ws hearsay statement), and in general we do not believe that multiple hearsay should be admissible merely because the declarant is unavailable to testify, (93) the fact that W is available for cross-examination seems to us to justify admitting Xs statement of what W said. (94)
10.78 In the great majority of cases there will be a document of some sort in which W or X has recorded what W observed. This is because, if the fact in question is the sort of fact that W cannot reasonably be expected to remember without the help of a document, it is unlikely that another person will be able, without such help, to remember what W stated that fact to be. But this is not inconceivable, because different people find different facts memorable. Suppose that W reads the model name of a car and tells X what it was. W may then forget it, because she knows nothing about cars and to her it is just a meaningless word; but X may remember it because he has an encyclopaedic knowledge of the motor industry and, to him, the name summons up a mental image of the model in question. In such a case we see no reason why X should not fill the gap in Ws recollection. The rule that we recommend is therefore not confined to cases where the statement is recorded in a document, but applies also where X gives oral evidence that he remembers what W said.
10.79 We acknowledge that it would be possible for witnesses to collude so that evidence could be admitted under this exception; but they can be cross-examined. W might be asked about visibility at the time, and X about how clearly he heard what W said, whether he checked it and so on. It is one of the main functions of cross-examination to alert the fact-finders to the danger that evidence has been fabricated, and we do not see why this should not be possible in such a case.
10.80 We recommend that, if
(1) a witness does not, and cannot reasonably be expected to, remember a matter well enough to be able to give oral evidence of it,
(2) the witness previously made a statement of that matter when it was fresh in the witnesss memory, and
(3) the witness indicates while giving evidence that, to the best of his or her belief, he or she made the statement and it is true,
the statement should be admissible as evidence of that matter. (95) (Recommendation 38)
MEMORY-REFRESHING DOCUMENTS
10.81 Under this recommendation it might not be strictly necessary to preserve the existing rule that a witness may refresh his or her memory from a contemporaneous note. Instead of treating the note as merely a way of jogging the witnesss memory (which will often be a fiction, because, even with the help of the note, the witness has no independent recollection), the court could acknowledge the reality and treat the note itself as evidence of the matters stated in it. But sometimes the witness genuinely does remember, when reminded by the note. It follows that the rules on the use of memory-refreshing documents would not become completely redundant under our recommendations, and we do not recommend that they should cease to have effect.
10.82 However, if the present rules were allowed to stand unaltered alongside the new rules set out in recommendation 38, an anomaly would arise. Where a witness uses a document to refresh his or her memory, and is cross-examined on parts of the document which the witness has not used for that purpose, the document may be exhibited; but it goes only to the witnesss consistency and is not evidence of its truth. (96) If, under our recommendations, the document were put forward not as a memory-refreshing document but as hearsay, it would be evidence of its truth. We do not believe that the evidential status of the document should depend whether it is initially relied upon under the new rules or the old, and we think that it should be treated as evidence of its truth in both cases. We recommend that a statement made by a witness in a document which is used by the witness to refresh his or her memory, on which the witness is cross-examined, and which as a consequence is received in evidence, should be admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (97) (Recommendation 39)
Childrens evidence recorded on video
10.83 Part III of the Criminal Justice Act 1991 created a new and important exception to the hearsay rule. (98) Provided that a child is available to come to court to give live evidence, a previous interview with the child, recorded on video, may be put in evidence in place of the childs examination in chief. The new provision lays down very detailed restrictions on the courts in which the procedure may be used, (99) the type of offence for which the defendant must be facing trial, (100) and the age of the child (which varies according to the nature of the offence). (101) The videotape is admissible only where the judge grants leave. (102)
10.84 This provision was intended to help the child by relieving him or her of some of the burden of giving evidence. However, judges have told us that it sometimes has the opposite effect: because there is no examination in chief, the child, once called to give evidence, is thrust immediately into a hostile cross-examination, and this experience gives the witness the impression that the court is against him or her. (103)
The response on consultation
10.85 On consultation, it was strongly suggested by a number of respondents that the use of video should be extended. (104) For example, the Recorder of London asked, "is there any good reason why [the video provisions] should not be extended to all trials on indictment?"
10.86 This is obviously a question which needs to be addressed, but we do not consider this project to be suitable for it. This was not a matter on which we sought views on consultation, and we therefore do not feel able to make recommendations on it. However, we believe that the matter should be looked at further. The fundamental point is that there appears to be a clearly held view that we should not reduce the scope of the provisions for the giving of evidence on video, and we make no recommendation for any change to these provisions.
PREVIOUS INCONSISTENT STATEMENTS
10.87 We now turn to consider statements made by a witness which are inconsistent, in whole or in part, with that witnesss oral testimony.
Summary of the present law
10.88 A witness may be cross-examined on an oral or written statement made before the trial which is inconsistent with his or her oral testimony. The evidential use of the earlier statement is governed by the common law. If the witness accepts the earlier statement as being true, it is evidence of its facts; but where the witness denies the truth of the earlier statement it is not evidence, being nothing but hearsay, (105) in which case the earlier statement reflects only on the witnesss credibility. If the witness does not admit making the earlier statement then the making of the statement may be proved. (106)
Criticism of the present law
10.89 The inconsistent statement is supposed to reflect only on the witnesss credibility, and therefore the fact-finders may not treat it as evidence directly on the facts in issue. It may be argued that the first statement can only cancel out the oral testimony because rejection of the testimony does not entail acceptance of the statement. Cross and Tapper, rightly in our view, describes this argument as "simply another instance of the pseudo-logic occasionally indulged in by lawyers". (107) Where it is possible (on the basis of other evidence, or the witnesss response under cross-examination) to treat the earlier statement as the true one, we do not see why the fact-finders should not do so: if jurors or magistrates are trusted to decide that a witness has lied throughout, and to disregard that witnesss testimony, why should they not be free to decide that the witnesss previous statement was correct, and to take as reliable the parts of the testimony that they find convincing? (108) As with other instances of the distinction between a statement going to credit and going to the issue, it may be doubted whether fact-finders appreciate or observe the distinction.
10.90 Further, the current law creates an anomaly in that the statement of a frightened witness may be admitted as evidence (under section 23(3) of the 1988 Act) where the witness fails to attend, (109) but if the effect of fear on the witness is to make him or her hostile, then the previous statement is not admissible as evidence of its contents it simply negates the witnesss oral evidence. The result is that the admissibility of the statement as evidence turns on the way the witness acts when afraid. (110)
The proposed reform
10.91 The CLRC recommended that a previous inconsistent statement, where admitted, should be admissible as evidence of the truth of its contents, (111) regarding it as too subtle a distinction to admit the statement only in order to neutralise the effect of the evidence given in court. (112) They believed that "as under the Civil Evidence Act [1968], contradictory statements by the same person should confront one another on the same evidential footing". (113) They claimed that in the case of "a previous statement by a person who is called as a witness there is a special reason for proposing to make the statement admissible", on the grounds that what is said soon after the events in question is likely to be at least as reliable as the evidence given at the trial, if not more so. (114) Although this may not always be the case, they considered that "it is likely to be helpful to the court or jury to have both statements", especially where the trial takes place long after the events in question. Other jurisdictions have enacted such a reform, (115) and we are not aware that any problems have resulted. In the consultation paper we indicated that we had in mind a recommendation along these lines. (116) There was some support for it, although David Ormerod thought that the effect in relation to hostile witnesses called for detailed discussion Those who were opposed to previous consistent statements being evidence of their trith were, naturally, also opposed to previous inconsistent statements being treated as evidence.
10.92 We recommend that a previous inconsistent or contradictory statement by a witness which
(1) the witness admits making, or#EOP#
(2) is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865,
should be admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (117)(Recommendation 40)
10.93 Some respondents expressed concern about injustice arising where the whole of a statement is admitted although the witness is cross-examined on only a part of it. Another objection made by some consultees was that if the fact-finders are allowed to take the statement into the retiring room or jury room with them, it may be regarded as more cogent or persuasive than the oral evidence. We believe that recommendation 37, (118) under which documentary statements made by witnesses would not accompany the fact-finders when they consider their verdict unless the parties agree or the court gives leave, should allay these concerns.
How the proposal will work in practice
10.94 Cross-examination on the basis of an inconsistent statement is normally conducted by the opposing party. Where the opposing party is the prosecution, evidence to the same effect as the inconsistent statement will probably have been adduced as part of the prosecution case in any event.
10.95 Our recommendation would effect a change where a defendant implicates a co-accused in a prior statement, but does not implicate him or her when testifying. At present, the prior statement would not amount to evidence against the co-accused. The rationale for this is that the out-of-court statement should not be admitted in evidence because a person accused of a crime has every incentive to blame someone else, and the person blamed will not have had the opportunity to cross-examine the accuser.
10.96 On the other hand, where a defendant implicates a co-accused when testifying, that does count as evidence against the co-accused. The effect of our recommendation would be that where a defendant implicates a co-accused in an out-of-court statement and is available for cross-examination, that prior statement could be admitted as evidence against the co-accused. Given that the co-accused can cross-examine the accused on the incriminating statement, and the fact that it will be obvious to the fact-finders that the accused has not been consistent, we believe that there is no danger in permitting the fact-finders to decide for themselves whether to believe the oral testimony, the previous statement, or neither.
10.97 Our recommendation would in some circumstances work in the defendants favour.
W makes a statement to the police, in which he admits his participation in an offence, and exculpates D. Later, D is charged with the offence, and W, having been allowed to plead guilty to a lesser charge, gives evidence for the prosecution against D. In the course of his evidence, W repudiates his statement and says that D participated in the offence. (119)
10.98 The practical consequences of the reform that we recommend would be as follows.
(1) A defendant could be convicted even where the complainant does not come up to proof, because the fact-finders could accept the complainants out-of-court statement as true (even though he or she does not confirm it in the witness box). (120)
(2) When considering a submission of no case to answer, the court would have to take account of the contents of a previous inconsistent statement admitted in evidence.
(3) Where the previous statement was relied on by the prosecution, section 78 of PACE would apply.
(4) If the quality of the out-of-court statement were such that a conviction would be unsafe, the court would be under a duty to direct an acquittal (or, on summary trial, to dismiss the information).
(5) The judge would have to treat the previous statement as evidence in the summing up.
(6) Where a previous inconsistent statement was admitted in evidence although the witness maintained that it was untrue, a careful direction might be needed. Although the weight to be attached to the oral testimony and the out-of-court statement would be a matter for the fact-finders, it might help a jury if they were told that they are not obliged to accept either version of events as true, and if their attention were drawn to other items of evidence which might help them decide which parts of the evidence to believe and which to reject.
HOSTILE WITNESSES
10.99 To illustrate the effect of our recommended reform in relation to hostile witnesses, we now consider two commonplace examples, the alleged assault victim and the accomplice who turns prosecution witness. In each case the witness fails to come up to proof.
10.100 In the former case, the alleged victim, having been deemed hostile by the court on application by the prosecution, denies the truth of the complaint made to the police on the night of the alleged assault. He or she now says it was all made up. On cross-examination by the prosecution the witness has difficulty explaining the injuries received, of which there is independent evidence. Under our recommendation the fact-finders would be able to convict if, despite the witnesss repudiation of the incriminating statement, they were sure that the accused committed the assault charged. But if there were no other evidence, the court might be persuaded that a conviction would be unsafe, in which case it would direct an acquittal or dismiss the information.
10.101 In the latter case, suppose that W has already pleaded guilty and is now a witness for the prosecution. W has been deemed hostile and claims that he did not make the confession attributed to him in which he implicated D. That confession is admissible against D, as if W were a testifying co-accused.
FOOTNOTES TO PART X
(1) See paras 10.2 10.62 below. The admissibility of a defendants previous exculpatory statements is discussed at paras 8.84 8.99 above.
(2) See paras 10.63 10.86 below.
(3) See paras 10.87 10.101 below.
(4) See paras 8.114 8.129 above. The res gestae exception to the hearsay rule, and the exceptions covering a defendants response on accusation (see paras 8.88 8.99 above), apply in the same way whether or not the maker of the statement testifies.
(5) Paras 13.1 13.4 of the consultation paper.
(6) Oyesiku (1971) 56 Cr App R 240.
(7) Fox v General Medical Council [1960] 1 WLR 1017.
(8) Coll (1889) 24 LR Ir 522, 541, per Holmes J.
(9) Nominal Defendant v Clements (1961) 104 CLR 476, 480.
(10) See, eg, Oyesiku (1971) 56 Cr App R 240, in which the prosecution insinuated that the accuseds wife had made up her testimony to support her husband. She had, however, made a statement to her husbands solicitors before he was released from custody, and her statement tended to show that her evidence was independent.
(11) Fannon (1922) 22 S NSW 427, 429430, per Ferguson J.
(12) Ibid, at p 551.
(13) Cook [1987] QB 417; Constantinou (1990) 91 Cr App R 74.
(14) Smith [1976] Crim LR 511.
(15) Lillyman [1896] 2 QB 167; Osborne [1905] 1 KB 551; Blackstone, para F6.14; Archbold, paras 8-103 to 8-106.
(16) This exception extends to any sexual offence, whether committed against a male or a female, and whether or not consent is in issue: eg Osborne [1905] 1 KB 551.
(17)See Wallwork (1958) 42 Cr App R 153, in which the complainant, a five-year-old girl, did not testify because she was too frightened, and so evidence of her recent complaint was inadmissible.
(18)In the recent case of Valentine [1996] 2 Cr App R 213, 223224, Roch LJ, giving the judgment of the court, said:
What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity. Further, a complaint will not be inadmissible merely because there has been an earlier complaint, provided that the complaint can fairly be said to have been made as speedily as could reasonably be expected.
The Supreme Court of Western Australia has interpreted the law similarly: see Miller v R (1995) 13 WAR 504.
(19) Greenwood [1993] Crim LR 770.
(20) Osborne [1905] 1 KB 551, 561.
(21) [1905] 1 KB 551, 556.
(22) Norcott [1917] 1 KB 347, 350, per Viscount Reading CJ.
(23)Cross and Tapper, p 295, referring to Fox v General Medical Council [1960] 3 All ER 225, 230; [1960] 1 WLR 1017, 10241025
(24) We noted at para 3.52 of the consultation paper that research has shown that the quality of witness statements taken by police officers may well be poor. Not only may the story appear in the officers words rather than the witnesss, but the content of the statement may not even accurately reflect what the witness told the officer. See M McLean, "Quality Investigation? Police Interviewing of Witnesses" in A New Look at Eye-Witness Testimony (British Academy of Forensic Sciences, 1994); D Wolchover and A Heaton-Armstrong, "A Sounder System", The Independent 16 April 1997.
(25) [1987] 164 CLR 180, 189 (High Court of Australia).
(26) See paras 3.9 3.12 above for our conclusions on the advantages of observing a witness testify.
(27) See Roberts [1942] 1 All ER 187, 191E, per Humphreys J; Jones v The South Eastern Chatham Railway Companys Managing Committee (1918) 87 LJKB 775, 778, per Swinfen Eady LJ.
(28) Beattie (1989) 89 Cr App R 302, 307, per Lord Lane LJ.
(29) Code of Practice for the Identification of Persons, issued by the Secretary of State under PACE, s 66(b).
(30) See Eatough [1989] Crim LR 289.
(31) [1967] 1 WLR 1286, where the Divisional Court reached its decision with reluctance (see Diplock LJ and Widgery J at 1290C); McLean (1967) 52 Cr App R 80; A Ashworth and R Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292, 298300.
(32) Para 13.12 of the consultation paper.
(33) See paras 10.52 and 10.80 below.
(34) Eg, if a burglar enters a house and sexually assaults the complainant, evidence can be given of the original complaint, whereas if the burglar only steals property from the premises it cannot.
(35) See Cross and Tapper, p 298.
(36) CLRC Evidence Report, para 232.
(37) At para 13.8.
(38) Osborne [1905] 1 KB 551, 561, per Ridley J.
(39) See n 18 above.
(40) J Temkin, Rape and the Legal Process (1987) pp 145146.
(41) [1996] 2 Cr App R 213: see n 18 above.
(42) See para 13.39 of the consultation paper.
(43) See paras 13.40 13.41 of the consultation paper.
(44) See paras 13.42 13.55 of the consultation paper.
(45) See paras 10.11 10.26 above.
(46) Cross and Tapper, p 302 (footnote omitted).
(47) In Scotland, by virtue of s 18 of the Criminal Justice (Scotland) Act 1995 and s 260 of the Criminal Procedure (Scotland) Act 1995 (which are identically worded), a witnesss previous statement is admissible if it was contained in a "document" and sufficiently authenticated by the witness prior to trial, provided that the witness would have been competent at the time of making the statement, and so long as he or she confirms being the originator of the statement and adopts it as his or her evidence.
(48) See para 13.41 of the consultation paper.
(49) See para 6.97 of the consultation paper.
(50) See generally "Hearsay Reform: A Bridge Not Far Enough?" [1996] Crim LR 29, 32.
(51) The author of Hearsay and Confrontation in Criminal Trials (1996).
(52) Eg Tooke (1990) 90 Cr App R 417, where a previous consistent statement by the defendant duplicated an earlier statement he had made, which was admitted; therefore "it was not relevant nor did it add anything to the weight of the other testimony".
(53) See paras 13.42 13.55 of the consultation paper.
(54) Where there are gaps in the witnesss oral evidence, or the previous statement replaces it entirely, the previous statement could take the place of oral evidence. We consider these situations separately at paras 10.63 10.81 below.
(55) The text of Article 6(3)(d) is set out at para 5.3 above.
(56) Hauschildt v Denmark Appl 10486/83, 49 Decisions and Reports 86, 102. See also para 5.21 above.
(57) There are three other circumstances in which we recommend that a previous statement by a witness be admissible: viz childrens evidence recorded on video, cases where the witness cannot remember details, and previous inconsistent statements. These are considered later in this Part.
(58) We are recommending that admissible inconsistent statements be treated as evidence of their contents, and not just as going to credibility: see para 10.92 below. It follows that fact-finders would be able to treat the inconsistent parts of a largely consistent statement as evidence of what they state.
(59) Paras 13.49 13.50 of the consultation paper.
(60) On which, see paras 10.91 and 10.92 below.
(61) See cl 8(2) of the draft Bill.
(62) See paras 10.19 10.21 above.
(63) See paras 13.51 13.55 of the consultation paper.
(64) See McLean (1967) 52 Cr App R 80; Jones v Metcalfe [1967] 1 WLR 1286; Kelsey (1982) 74 Cr App R 213.
(65) See cl 8(4), (5) of the draft Bill.
(66) See paras 10.22 10.26.
(67) See, eg, J R Spencer, "Hearsay Reform: A Bridge Not Far Enough?" [1996] Crim LR 29, 33.
(68) See para 13.33 of the consultation paper; J R Spencer and R H Flin,The Evidence of Children: The Law and the Psychology (2nd ed 1993) p 268.
(69) We note the care taken not to "contaminate" the evidence in chief of a child where it is recorded on video, eg by avoiding leading questions. See "Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings" (HMSO 1992) p 1.
(70) We referred at para 3.52 of the consultation paper to research which casts doubt on the reliability of the witness statements taken by police officers: see n 24 above.
(71) See para 10.23 above.
(72) See para 10.25 above.
(73) See para 10.26 above.
(74) See cl 8(4), (7) and (8) of the draft Bill.
(75) See cl 11 of the draft Bill.
(76) Eleftheriou [1993] Crim LR 947.
(77) [1990] 1 WLR 31.
(78) Ibid, at p 36.
(79) R v South Ribble JJ, ex p Cochrane [1996] Crim LR 741.
(80) See McLean (1967) 52 Cr App R 80; Jones v Metcalfe [1967] 1 WLR 1286; Kelsey (1982) 74 Cr App R 213; and para 10.21 above.
(81) As occurred in Thomas [1994] Crim LR 745 where the eight-year-old witness who had provided exculpatory evidence in a statement to police had no recollection of events at all by the time of the retrial. Sight of the statement did not refresh her memory and the evidence which tended to show the defendant had not committed the murder with which he was charged never reached the jury.
(82) Osbourne and Virtue [1973] QB 678, in which there were two eye-witnesses who had attended identification parades. Neither of them identified the accused at court. One could not remember having picked out anyone at the parade, but did not explicitly deny that she had done so. The second witnesss evidence about what had happened at the parade was very contradictory and confused, saying both that she had and that she had not picked out one of the accused. The defence objected to the evidence of the police inspector about what had happened at the parades, but it was permitted.
(83) Eg Carrington [1994] Crim LR 438, where the witness (being at work at the time) called out details to a colleague, who wrote them down. The note was admitted under s 24 of the 1988 Act.
(84) Judge Wickham.
(85) See para 10.65 above.
(86) Para 13.53 of the consultation paper.
(87) Professor Friedman.
(88) The Crown Prosecution Service.
(89) W is for convenience assumed to be female, and X male.
(90) Following the lead of the Court of Appeal in Osbourne and Virtue [1973] QB 678, 690, per Lawton LJ: "One asks oneself as a matter of commonsense why, when a witness has forgotten what she did, evidence should not be given by another witness with a better memory to establish what, in fact, she did when the events were fresh in her mind".
(91) Obviously W need not remember what she said: that would be tantamount to a requirement that she remember the details she stated. It is sufficient if W says "what I told X was true" and X says "this is truly what W told me".
(92) See paras 8.34 8.43 above, and cls 3 and 5 of the draft Bill.
(93) See paras 8.15 8.17 above.
(94) Clause 10(2) of the draft Bill would not exclude Xs statement because Ws statement is admissible under cl 8(4), ie otherwise than under cl 3 or a rule preserved by cl 6. See para 8.21 above.
(95) See cl 8(4) and (6) of the draft Bill.
(96) Britton (1987) 85 Cr App R 14; Sekhon (1987) 85 Cr App R 19; Archbold, para 8-86.
(97) See cl 8(3) of the draft Bill.
(98) By inserting a new section 32A into the 1988 Act. Section 32A is set out at Appendix B.
(99) Section 32A(1).
(100) Section 32(2). On the interpretation of this subsection see Lee [1996] 2 Cr App R 266.
(101) Section 32A(7).
(102) Section 32A(2). Where leave is granted, the child may not give evidence in chief, on matters dealt with in the recording, by other means: s 32A(6A), inserted by the 1996 Act, s 62.
(103) See the contribution of the Minister of State for the Home Office, Mr David Maclean MP, to a parliamentary debate on child witnesses: Hansard (HC) 13 December 1994, vol 251, col 900.
(104) The most common extension suggested was that it should be possible to use it for key witnesses other than children who are, for various reasons, either vulnerable or frightened. Some respondents also suggested that cross-examination of children should be recorded on video implementing the recommendations of the the Pigot Committee (Report of the Advisory Group on Video Evidence, Home Office 1989).
(105) Birch (1924) 18 Cr App R 26; Gillespie and Simpson (1967) 51 Cr App R 172; Askew [1981] Crim LR 398. See also Golder, Jones and Porritt [1960] 3 All ER 457, 459, where the inconsistent statement was put to a witness deemed to be hostile.
(106) See generally s 4 of the Criminal Procedure Act 1865, and s 3 in the case of a hostile witness. Section 5 regulates the way in which the earlier statement may be used. The text of these sections is set out at Appendix B.
(107) Cross and Tapper, p 317.
(108) This argument is put persuasively by P Murphy in "Previous Consistent and Inconsistent Statements" [1985] Crim LR 270, 282283. See also KGB (1993) 79 CCC (3d) 257, in which the Canadian Supreme Court held that the truth of the previous statements could be considered by the jury because there were sufficient indications that the statements were reliable. See para 13.46 of the consultation paper.
(109)See para 2.14 above.
(110) This was commented upon in the recent case of Waters (1997) 161 JP 249, 251FG.
(111) CLRC Evidence Report, para 236, and cls 31(3) and 33 of the draft Bill attached to that Report.
(112) Ibid, at para 232.
(113) Ibid, at para 257.
(114) Ibid, at para 239.
(115) Under the Australian Evidence Act 1995, s 60, evidence of a previous representation by a witness is not subject to the hearsay rule if it is admitted to show that the witness has contradicted it; see also the Queensland Evidence Act 1977, s 101. Rule 801(d)(1) of the United States Federal Rules of Evidence provides that a prior statement by a witness is not hearsay if
The declarant testifies at the trial or hearing and is subject to cross-examination concerning his statement, and the statement is (A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition
(116) See para 13.47 of the consultation paper.
(117) See cl 7(1) of the draft Bill.
(118) See para 10.62 above.
(119) P Murphy, "Previous Consistent and Inconsistent Statements" [1985] Crim LR 270, 282.
(120) But see (4) below.