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The Law Commission
You are here: BAILII >> Databases >> The Law Commission >> Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(14) (19 June 1997)
URL: http://www.bailii.org/ew/other/EWLC/1997/245(14).html
Cite as: [1997] EWLC 245(14)
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PART XIV
OUR RECOMMENDATIONS
In this Part we set out our recommendations, with reference to the paragraphs of the report where they appear.
THE RULE AGAINST HEARSAY
We recommend that there should be a general rule against hearsay, subject to specified exceptions, plus a limited inclusionary discretion.
We recommend
(1) that (subject to the exceptions we recommend) in criminal proceedings a statement not made in oral evidence in the proceedings should not be admissible as evidence of any matter stated, and
(2) that a matter should be regarded as stated in a statement if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been
(a) to cause another person to believe the matter, or
(b) to cause another person to act, or a machine to operate, on the basis that the matter is as stated.
Statements produced by machines
We recommend that, where a representation of any fact is made otherwise than by a person, but depends for its accuracy on information supplied by a person, it should not be admissible as evidence of the fact unless it is proved that the information was accurate.
THE EXCEPTIONS TO THE RULE
The unavailability exception
What kinds of hearsay should be automatically admissible where the declarant is unavailable?
We recommend that the unavailability exception should extend to oral as well as documentary hearsay.
We recommend that the unavailability exception should not be available unless the person who made the statement is identified to the courts satisfaction.
We recommend that the unavailability exception should not extend to a statement of any fact of which the declarant could not have given oral evidence at the time when the statement was made.
We recommend that the unavailability exception should not apply if the declarants oral evidence of the fact stated would itself have been hearsay, and would have been admissible only under the unavailability exception or under one of the common law exceptions that we recommend should be preserved.
We recommend that a person should not be allowed to adduce a statement under the unavailability exception where the unavailability of the declarant is caused by the person in support of whose case it is sought to give the statement in evidence, or by a person acting on that persons behalf, in order to prevent the declarant giving oral evidence (whether at all or in connection with the subject matter of the statement).
We recommend that, where a party alleges that the party tendering the statement caused the unavailability of the declarant in order to prevent the declarant from giving oral evidence, the burden of proof should rest on the party opposing the admission of the evidence.
What kinds of unavailability should make the declarants statement admissible?
We recommend that the unavailability exception should apply where the declarant is dead.
We recommend that the unavailability exception should apply where the declarant is unfit to be a witness because of his or her bodily or mental condition.
We recommend that the unavailability exception should apply where the declarant is outside the United Kingdom and it is not reasonably practicable to secure his or her attendance.
We recommend that the unavailability exception should apply where the declarant cannot be found, although such steps as it is reasonably practicable to take to find him or her have been taken.
Fear
We recommend that a statement made by a person who through fear does not give (or does not continue to give) oral evidence in the proceedings, at all or in connection with the subject matter of the statement, should be admissible with the leave of the court.
Business documents
We recommend that there should continue to be an exception for statements contained in business documents.
We recommend that statements falling within the business documents exception should be automatically admissible, but that the court should have power to direct that a statement is not admissible as a business document if it is satisfied that the statements reliability is doubtful.
We recommend that, where a business document contains a statement which was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, and the information contained in the statement was supplied by another person, the statement should be admissible only if that person is unavailable to give oral evidence or cannot reasonably be expected to have any recollection of the matters dealt with in the statement.
Confessions, mixed statements and denials
We recommend that the current law be preserved in respect of admissions, confessions, mixed statements, and evidence of reaction.
We recommend that the admissibility of a confession by one co-accused at the instance of another should be governed by provisions similar to section 76 of PACE, but taking into account the standard of proof applicable to a defendant.
Evidence given at an earlier trial
We recommend that evidence given at the original trial should be admissible in a retrial like any other statement if the witness is unavailable to give oral evidence, and that it should be immaterial whether the retrial was ordered by the Court of Appeal or a judge at first instance.
The Criminal Procedure and Investigations Act 1996
We recommend the repeal of paragraphs 1(4) and 2(4) of Schedule 2 to the Criminal Procedure and Investigations Act 1996.
Res gestae
We recommend the retention of the common law exception under which a statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.
We recommend the retention of the common law exception under which a statement is admissible as evidence of any matter stated if the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement.
We recommend the retention of the common law exception under which a statement is admissible as evidence of any matter stated if the statement relates to a mental state (such as intention or emotion).
We recommend the retention of the common law exception under which a statement is admissible as evidence of any matter stated if the statement relates to a physical sensation.
The common enterprise exception
We recommend the retention of the common law rule that a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.
Other common law exceptions
We recommend that the following common law exceptions be retained:
(1) published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) as evidence of facts of a public nature stated in them;
(2) public documents (such as public registers, and returns made under public authority with respect to matters of public interest) as evidence of facts stated in them;
(3) records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) as evidence of facts stated in them;
(4) evidence relating to a persons age or date or place of birth;
(5) reputation as evidence of a persons good or bad character;
(6) reputation or family tradition as evidence of pedigree or the existence of a marriage, the existence of any public or general right, or the identity of any person or thing; and
(7) informal admissions made by an agent.
The safety-valve
We recommend that there should be a limited discretion to admit hearsay evidence not falling within any other exception.
We recommend that the inclusionary discretion
(1) should extend to oral as well as documentary hearsay, and to multiple as well as first-hand hearsay; and
(2) should be available if the court is satisfied that, despite the difficulties there may be in challenging the statement, its probative value is such that the interests of justice require it to be admissible.
We recommend that the inclusionary discretion be available to both the prosecution and the defence.
Admitting hearsay by consent
We recommend that hearsay evidence should be admissible if all parties to the proceedings agree to it being admissible.
EXPERT EVIDENCE
We recommend the preservation of the common law exceptions under which an expert witness may draw on the body of expertise relevant to his or her field.
We recommend
(1) that the Crown Court (Advance Notice of Expert Evidence) Rules 1987 (1) and the Magistrates Courts (Advance Notice of Expert Evidence) Rules 1997 (2) should be amended so as to require advance notice of the name of any person who has prepared a statement on which it is proposed that an expert witness should base any opinion or inference, and the nature of the matters stated; and
(2) that, where such notice has been given, and the person who prepared the statement had (or may reasonably be supposed to have had) personal knowledge of the matters stated, the expert witness should be able to base any opinion or inference on the statement, and the statement should then be admissible as evidence of what it states, unless the court directs otherwise on application by any other party to the proceedings.
PREVIOUS STATEMENTS BY WITNESSES
Suggestion of late invention
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.
Evidence of a previous identification or description
We recommend that, where
(1) a witness has made a previous statement which identifies or describes a person, object or place, and
(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.
Recent complaint
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.
Documentary statements as exhibits
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.
Inability to remember
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.
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.
Previous inconsistent statements
We recommend that a previous inconsistent or contradictory statement by a witness which
(1) the witness admits making, or
(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.
SAFEGUARDS FOR THE PARTY AGAINST WHOM HEARSAY EVIDENCE IS ADDUCED
Formal notice to be given
We recommend that, where it is known in advance of the trial that a party will seek to adduce hearsay evidence, rules of court should require that party to give notice of the intention to do so.
Application for a ruling on admissibility to be made pre-trial where possible
We recommend that a party seeking to rely on a hearsay statement should make an application for its admission before the trial where possible, and, where this is not possible, at the earliest practicable opportunity, and a ruling on admissibility should be binding, save where there is a change of circumstances.
An additional power to exclude evidence
We recommend that the court should have power to refuse to admit a hearsay statement if it is satisfied that the statements probative value is substantially outweighed by the danger that to admit it would result in undue waste of time.
The right to challenge the credibility of the absent declarant
We recommend that, where a hearsay statement is admitted and the maker of the statement does not give evidence, the following evidence should be admissible to discredit the maker of the statement:
(1) evidence which, had the maker given evidence, would have been admissible as relevant to his or her credibility; and
(2) (with the leave of the court) evidence of any matter which, had the maker given evidence, could have been put to him or her in cross-examination as relevant to his or her credibility but of which evidence could not have been adduced by the cross-examining party.
We recommend that, where a hearsay statement is admitted and the maker of the statement does not give evidence, evidence that the maker of the statement made another statement, inconsistent with the hearsay statement,
(1) should be admissible for the purpose of showing that the maker contradicted himself or herself, and
(2) when so admitted, should also be admissible as evidence of any matter stated in it of which oral evidence by the maker would be admissible.
We recommend that where an allegation has been made against the maker of a hearsay statement, the court should have power to permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.
The courts duty to stop the trial
We recommend that if the case against the accused is based wholly or partly on a hearsay statement, and the evidence provided by the statement is so unconvincing that, considering its importance to the case against the accused, the accuseds conviction of the offence would be unsafe, the magistrates should be required to acquit, or (as the case may be) the judge should be required to direct the jury to acquit, the accused of the offence.
PROCEDURAL MATTERS
We recommend that the same rules on hearsay should apply to both prosecution and defence (save for the different standards of proof and the existing discretions to exclude prosecution evidence).
We recommend that any reform of the hearsay rule should apply where the criminal rules of evidence currently apply, namely courts-martial and professional tribunals established by statute, but should not affect coroners courts.
COMPUTER EVIDENCE
We recommend the repeal of section 69 of PACE.
(Signed) MARY ARDEN, Chairman
ANDREW BURROWS
DIANA FABER
CHARLES HARPUM
STEPHEN SILBER
MICHAEL SAYERS, Secretary
4 April 1997
FOOTNOTES TO PART XIV
(1) SI 1987 No 716 (L2), as amended by the Crown Court (Advance Notice of Expert Evidence) (Amendment) Rules, SI 1997 No 700 (L6).
(2) SI 1997 No 795 (L11).