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You are here: BAILII >> Databases >> The Law Commission >> Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(3) (19 June 1997)
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Cite as: [1997] EWLC 245(3)
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PART III
THE JUSTIFICATIONS OF THE HEARSAY RULE
3.1 In Part VI of the consultation paper we analysed the alleged justifications of the rule to consider their cogency, and to determine whether, individually or cumulatively, they should render hearsay inadmissible or whether, with or without safeguards, they are instead factors to be taken into account when deciding on the weight to be given to hearsay evidence once admitted. If hearsay evidence is to be admitted, it is important to know its shortcomings, so as to be able to determine when it should be admitted, and what safeguards should be in place to protect the interests of those against whom it is adduced. In this Part we therefore consider a number of arguments that have been advanced in favour of the hearsay rule, and review the provisional conclusions set out in the consultation paper. As in the consultation paper, we take as our starting point Lord Normands summary of the weaknesses of hearsay evidence:
It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost. (1)
HEARSAY "IS NOT THE BEST EVIDENCE"~(2)~
3.2 Our provisional view in the consultation paper (3) was that hearsay may well be the "best evidence" in the sense that it is the best available, for example where the original source of the information can no longer be produced because that person is dead. And some hearsay is plainly superior to oral evidence: we gave the example of Myers v DPP, (4) where a contemporaneous record on which car workers had recorded the cylinder block and chassis numbers of the cars they were assembling was not admitted, even though such evidence would have been much more reliable than the workers oral recollection three years later (even if it had been possible to trace them). (5)
3.3 It can be deduced from the number of exceptions to the hearsay rule that the argument that hearsay is not the best evidence does not always hold true. Lord Reid explained:
The whole development of the exceptions to the hearsay rule is based on the determination of certain classes of evidence as admissible or inadmissible and not on the apparent credibility of particular evidence tendered. No matter how cogent particular evidence may seem to be, unless it comes within a class which is admissible, it is excluded. Half a dozen witnesses may offer to prove that they heard two men of high character who cannot now be found discussing in detail the fact now in issue and agree on a credible account of it, but that evidence would not be admitted although it might be by far the best evidence available. (6)
3.4 Our provisional conclusion in the consultation paper that some hearsay evidence is the best evidence and some is not, and that, where it is, the rule operates irrationally to prevent its admission was supported by the vast majority of those who responded on this issue. We now adopt it as our final conclusion, and will bear it in mind when we reconsider the exceptions to the rule.
"THE DANGER THAT HEARSAY EVIDENCE MIGHT BE CONCOCTED",(7) AND THE DANGER OF ERRORS IN TRANSMISSION
3.5 If there were no hearsay rule a defendant could produce in evidence a letter or witness statement in which the declarant alas, now unavailable claims to have seen the offence being committed by someone other than the defendant, or to have seen the defendant somewhere else at the time of the offence. Such evidence, however weak, might persuade a tribunal of fact that there was a reasonable doubt about the defendants guilt. Arguments of this sort had a great influence on the CLRC Evidence Report, and caused the CLRC to qualify its proposal for the relaxation of the hearsay rule with a ban on statements coming into existence after the suspect knew of an impending prosecution. (8) The Bar Council also expressed fears about the risk of concoction in its official response to the CLRC Report. (9)
3.6 Hearsay often carries the risk of errors appearing as the evidence is repeated by different people. The person who reports the words of another may have misheard them or misinterpreted them. (10) This risk is all the greater if the reporter had a preconceived idea of what the other person was going to say. The more remote the source, the greater the likelihood of errors in transmission.
3.7 If the source of the original information is not available for cross-examination, it is more difficult for errors or lies to be exposed by the opposing party. Our approach in the consultation paper was that these dangers do not in themselves justify retaining the hearsay rule in its present form, because it excludes not only statements where both risks are present, but also statements where there can be no doubt about what was said, or where the risk of fabrication is low. (11) Our provisional view was that the risks of manufactured evidence and of errors in transmission were good justifications for the complete exclusion only of multiple hearsay and the hearsay evidence of unidentified witnesses. In other cases the risks could be reduced to an acceptable level by (for example) requiring advance notice of the intention to adduce hearsay, or permitting a party against whom hearsay is used to call evidence undermining the credibility of the declarant as if he or she had been present. In jury trials there could also be an appropriate judicial warning about the dangers of distortion and of manufactured evidence. (12)
3.8 Of the respondents who dealt with this point, a large majority agreed with our provisional view. (13) We still believe that, where there is good reason to admit the hearsay, the risks implicit in first-hand hearsay from an identified person should not affect its admissibility but only its weight. Even where the hearsay is not first-hand, or the declarant cannot be identified, it may be acceptable to admit the hearsay evidence if it is known what words the declarant used, or the risk of fabrication is low. (14)
"THE LIGHT WHICH HIS DEMEANOUR WOULD THROW ON HIS TESTIMONY IS LOST"~(15)~
3.9 In the consultation paper we drew attention to the widely diverging views as to whether fact-finders are assisted, in deciding whether a witnesss evidence is true, by his or her demeanour. (16) The traditional view is that the effect of reading out-of-court statements is
to deprive the jury of the inestimable advantage the one great advantage to which those who uphold the system of trial by jury always point of the opportunity of not only seeing the witnesses who give evidence and hearing what they have to say, but also of observing their demeanour in the witness-box. (17)
3.10 Against this, a number of judges have doubted whether the demeanour of a witness is really much of a clue as to the witnesss veracity. One very experienced judge, whose view was endorsed by a distinguished Law Lord, doubted his own ability, "and sometimes that of other judges, to discern from a witnesss demeanour, or the tone of his voice, whether he is telling the truth". (18) Similar views have been expressed by other lawyers with much knowledge of the criminal justice system. (19)
3.11 Psychological evidence suggests that it is the doubters who are right. (20) Studies indicate that if observers are familiar with a speaker they might be better able to tell when he or she is lying; but this point is of little value in the case of fact-finders, because they will not know the witness. After reviewing the available psychological literature, J R Spencer and Rhona Flin conclude:
The most that can be said for the value of the demeanour of a witness as an indicator of the truth is that it is one factor, which must be weighed up together with everything else. It would be quite wrong to promote it to the level where we use it to accept or reject the oral testimony of a witness in the face of other weighty matters all of which point the other way. (21)
3.12 Our provisional conclusion was that, insofar as a witnesss demeanour does help the fact-finder to reach an accurate verdict, it is not so significant a fact in itself as to justify the exclusion of hearsay evidence. (22) The jury can be expressly warned that they have not had the advantage of seeing how the witness gives evidence, nor how he or she would have stood up to cross-examination. (23) On consultation the majority of respondents agreed with this view, though a minority (24) believed that we had underestimated the value of demeanour. We are not persuaded that its significance is such as to justify the exclusion of hearsay, but we do believe that it is a matter which merits a judicial warning. (25)
"IT IS NOT DELIVERED ON OATH"(26)
3.13 The oath historically has a central place in a system of justice based on a belief that God would punish the liar. Today, the oath provides no guarantee that the witness will tell the truth, and there is widespread scepticism about its utility. In 1972, the CLRC pointed out that it had not prevented "an enormous amount of perjury in the courts". (27) Similarly, the Court of Appeal has said: "It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised". (28) We also note that many responsible organisations in England and Wales have called for the oath to be abolished. (29)
3.14 In the consultation paper we recognised that any responsible person would be more careful about the accuracy of what he or she said in court than in casual conversation. This may of course be a result of the public nature of the proceedings, or of the prospect of being closely cross-examined, rather than of the oath. (30) Our provisional conclusion was that there was no clear evidence that an oath or affirmation in itself promotes truthful testimony. (31) A large majority of those who responded on this point agreed. Those who disagreed thought the solemnity of the occasion, together with the fear of prosecution for perjury, brought home to the witness the importance of giving truthful evidence. On further consideration, we believe our provisional view to be correct.
"THE TRUTHFULNESS AND ACCURACY OF THE PERSON WHOSE WORDS ARE SPOKEN TO BY ANOTHER WITNESS CANNOT BE TESTED BY CROSS-EXAMINATION"(32)
3.15 The absence of any opportunity to cross-examine the maker of a hearsay statement is the objection to hearsay most strongly pressed today. (33) In 1987, Lord Irvine of Lairg explained in the House of Lords debate on the Criminal Justice Bill:
There is no advocate who has not experienced countless cases where a story that seemed consistent and watertight when set down on paper was destroyed by a proper and skilful cross-examination. (34)
3.16 This approach echoes the long-established view of the merits of cross-examination: for example, Sir Matthew Hale wrote in 1739 that cross-examination "beats and boults out the Truth". (35) Wigmore regarded it as "the greatest legal engine ever invented for the discovery of truth", (36) and added that "cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure".
3.17 In the consultation paper, we drew attention to those who have been sceptical about these claims for the value of cross-examination, (37) including the ALRC, which, having reviewed the available literature, concluded that "so far as obtaining accurate testimony is concerned, [cross-examination] is arguably the poorest of the techniques employed at present in the common law courts". (38) We agreed that in some cases little can be gained from cross-examination, (39) and that some witnesses are put at a particular disadvantage by cross-examination, (40) but concluded that the fact that a hearsay statement cannot be tested by questions can be a serious objection to the admission of such evidence. Our provisional conclusion was that the absence of cross-examination is the most valid justification of the hearsay rule, but that even this justification is not valid for all hearsay, and in any event it does not justify the current form of the hearsay rule. (41)
3.18 On consultation, all the respondents who addressed this provisional conclusion agreed with it. For example, Professor Sir John Smith regarded the absence of cross-examination as not only the best but "probably the only justification for the hearsay rule". We have therefore retained this provisional conclusion, and will keep it in mind when making our more detailed recommendations, not only on what hearsay should be admitted, but also on what safeguards should be given to the opposing party.
"THE DANGER THAT UNTESTED HEARSAY EVIDENCE WILL BE TREATED AS HAVING A PROBATIVE FORCE WHICH IT DOES NOT DESERVE"(42)
3.19 Lord Devlin stressed the importance of this point when he said in the Fifth Hamlyn Lecture in 1956 that
the first object of the rules [of evidence] was to prevent the jury from listening to material which it might not know how to value correctly. What a man is said to have said, ie hearsay, may often be of some weight even though the man is not there to be cross-examined about it and though he might, if he came, deny saying it. But the danger of hearsay is that the juryman, unused to sifting evidence, might treat it as first-hand; so, except for limited purposes, it is not allowed. (43)
3.20 A contrary view was expressed by Professor Glanville Williams, who commented that juries
are credited with the ability to follow the most technical and subtle directions in dismissing evidence from consideration, while at the same time they are of such low-grade intelligence that they cannot, even with the assistance of the judges observations, attach the proper degree of importance to hearsay. (44)
3.21 In coming to a view on this issue we have been hampered by our inability to carry out research into the effects of judicial warnings. (45) Research on actual juries is prohibited by section 8 of the Contempt of Court Act 1981, and we agree with the Royal Commission that that section should be amended to enable research to be conducted into juries reasons for their verdicts, "so that informed debate can take place rather than argument based on surmise and anecdote". (46) David Pannick QC has rightly pointed out that "where a Royal Commission has to make policy proposals based on guesswork, the case for law reform is unanswerable". (47)
3.22 In Australia, there is some evidence which raises serious doubts as to whether juries fully understand some of the directions in law that they are given, (48) while other research suggests that "some juries are capable of responding appropriately to directions, although the result varies". (49) In the Crown Court study commissioned by the Royal Commission over 61% of jurors questioned said they had found the judges directions on law not at all difficult, and a further 33% not very difficult. (50) Unfortunately, the study does not indicate the types of evidence on which directions were given. Two other studies (51) indicate that mock juries seem to be able to follow judicial directions on the use of hearsay in particular, although this research has its limitations. (52)
3.23 The Judicial Studies Board has recently published this draft specimen direction on hearsay:
As you know, the general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box. Then you have the opportunity to see the witness for yourselves and judge his/her evidence accordingly. However, there are certain circumstances where a witness is unavailable and the statement of that witness is read out. That has happened here in the case of the witness X. That statement is evidence in the case which you can consider, but as he/she did not come to court, his/her evidence has certain limitations which I must draw to your attention:
1. First, when someones statement is read out you do not have the opportunity of seeing him/her in the witness box, and sometimes when you see a witness you get a much clearer idea of whether that evidence is honest and accurate.
2. Second, his/her evidence has not been tested under cross-examination, and therefore you have not had the opportunity of seeing how the evidence survived this form of challenge.
You must therefore consider the evidence of X in the light of these limitations. You should only act upon it, if having taken these matters into account, you are nevertheless sure that it is reliable. (53)
3.24 In the consultation paper we considered that, in the absence of any conclusive empirical evidence, there were two different ways of deciding whether juries and magistrates can understand the directions given to them on the weakness of hearsay evidence. The first was to consider the views of experts experienced in the workings of the criminal justice system, and the other was to examine the complexity of tasks already imposed upon fact-finders who are not legally qualified.
3.25 Starting with the views of those versed in criminal procedure, the most important is the conclusion of the CLRC:
We disagree strongly with the argument that juries and lay magistrates will be over impressed by hearsay evidence and too ready to convict or acquit on the strength of it. Anybody with common sense will understand that evidence which cannot be tested by cross-examination may well be less reliable than evidence which can. In any event judges will be in a position to remind juries that the former is the case with hearsay evidence, and sometimes the judge may think it advisable to mention this to the jury at the time when the statement is admitted. On the other hand there is some hearsay evidence which would rightly convince anybody. Moreover, juries may have to consider evidence which is admissible under the present law, and there are other kinds of evidence which they may find it more difficult to evaluate than hearsay evidence for example, evidence of other misconduct. (54)
3.26 This raises the question how fact-finders respond to other tasks of evaluating evidence and considering directions that are given to them. We have referred to Glanville Williams cogent point that jurors are credited with being able to follow "the most technical and subtle directions" in other areas. (55) In the consultation paper we gave some illustrations of potentially difficult directions given to juries, such as the directions given in the Subramaniam (56)type of case where juries have to understand that a statement is put before them to show the fact that it was made, and not the truth of what was said. Thus, where a defendant is charged with handling stolen goods, he or she may give evidence of what the supplier said was the source of the goods. The jury must then be directed that this is not proof of what the source actually was, but only of what the defendant was told. It is assumed that such a direction is comprehensible to juries and to magistrates. If this is a legitimate assumption, we wonder why it is not reasonable to assume that a hearsay direction would also be comprehensible.
3.27 Another difficult direction given to juries is that given where one accused is of bad character and the other of good character. (57) In the consultation paper we gave other examples of juries being assumed to understand directions of importance and of greater complexity than the direction on hearsay. (58)
3.28 Our provisional view was that, in the case of first-hand hearsay, juries and magistrates are capable of understanding and following a warning of the defects of hearsay evidence. (59) Of the respondents who dealt with this point, the vast majority agreed, and we were reminded that juries act on far more complex directions. We were particularly gratified that the Justices Clerks Society believed that magistrates would understand, and give proper consideration to, the kind of warning that magistrates would and do receive from their clerk on hearsay evidence. Similarly, the support we received from those with knowledge of jury trials (60) confirmed our provisional conclusion. This is a significant conclusion, since it indicates that some exceptions to the hearsay rule may be justifiable.
"THE RULE HAS BEEN EVOLVED AND APPLIED OVER MANY YEARS IN THE INTEREST OF FAIRNESS TO PERSONS ACCUSED OF CRIME"(61)
3.29 The traditional reason for this view was that there was a danger of the accused being taken by surprise if hearsay evidence were given. (62) This is no longer an issue, as the prosecution is now obliged to disclose in advance certain items of evidence. (63)
3.30 In some jurisdictions the prosecution is allowed to use hearsay statements of anonymous witnesses. In the consultation paper we gave instances of this happening in Denmark, the Netherlands and Germany, and of cases which had been brought to the attention of the Strasbourg Court. (64) We are unhappy about this form of hearsay, and would not wish to see it used in England and Wales.
3.31 If there is concern that the existing hearsay rule does not in fact protect the accused from injustice, the rule could of course be changed so as to apply more strictly to prosecution evidence. We would not be in favour of this approach, because we are not in favour of different rules for prosecution and defence. (65)
3.32 We also believe that the hearsay rule can in fact operate against defendants, as well as in their favour. One of the most serious criticisms of the rule is that it sometimes prevents defendants from putting cogent evidence of their innocence before the court. (66)
3.33 All these factors led us to the provisional view that the hearsay rule does not always operate to protect the accused: the accused may be prevented from adducing exculpatory evidence, and, where hearsay is admitted, is not protected from the jury or magistrates treating it as being of equal weight to non-hearsay evidence. (67) This view was accepted by all but one of the respondents. The exception was the Wales and Chester Circuit, who argued: "The idea of the defendants being able to adduce exculpatory hearsay evidence is clearly open to abuse". After considering all the responses, our final view is the same as our provisional view.
"IT IS ALWAYS MORE DIFFICULT TO TELL A LIE ABOUT A PERSON TO HIS FACE THAN BEHIND HIS BACK"~(68)~
3.34 There is a strongly held view that it is somehow fundamental to justice that an accused person should be able to confront the accusers, and that the witness should be obliged to make his or her accusation to the accuseds face. (69) The "right" of confrontation has been expressed, (70) and put on statutory footing, (71) in various jurisdictions. However, this approach has not been adopted in England and Wales, where greater use is now being made of procedures to separate the witness from the accused. The witness may be permitted to give evidence from behind a screen, though not all practitioners are convinced that this practice is fair to the accused, and the courts have shown some reluctance to allow it. (72) Alternatively, the witness may give evidence via closed circuit television, with the leave of the court. (73)
3.35 Our provisional view was that it is desirable for witnesses to give their evidence in the presence of the accused if possible, but that there are other factors which may outweigh the need for this. (74) Again, there was an overwhelming majority in support of this view. Professor Sir John Smith believed that there was "nothing to say in favour of confrontation as such", but he thought that the defendant must have the right to see and hear the evidence given against him or her wherever possible and to cross-examine. Jowitt J asked: "What contribution does the defendants ability to see the witness make to getting the right answer?". We respectfully agree that it is not clear how much confrontation actually contributes to an accurate verdict, but if it is avoided the accused may feel that justice has not been done. We therefore confirm our provisional conclusion.
IF HEARSAY WERE ADMITTED, VALUABLE COURT TIME WOULD BE WASTED HEARING EVIDENCE OF LITTLE WEIGHT
3.36 This standard justification is not supported by the experience of the English civil courts: they have not been overwhelmed with poor quality evidence since the hearsay rule was relaxed by the Civil Evidence Act 1968. (75) In the consultation paper we suggested that the opposite is the case, because time would be saved by courts receiving evidence quickly and cheaply if it were presented in written form. (76) Our provisional view was that, although the rule does lead to the exclusion of some evidence which would be of little or no assistance to the court, the time thus saved is outweighed by the time spent on legal argument made necessary by the uncertainty of the rule and the degree to which it depends on the exercise of judicial discretion. (77) The overwhelming view of consultees was in favour of this conclusion. The major arguments to the contrary came from those who doubted whether much time was in fact spent on legal argument about the hearsay rule, (78) and from those who doubted that our proposed reforms would reduce such argument. We have considered these arguments with care, but do not find that they persuade us to alter our provisional view.
CONCLUSIONS
3.37 We believe that the main, if not the sole, reason why hearsay is inferior to non-hearsay is that it is not tested by cross-examination. This in itself may justify requiring the witness to attend where possible. Hearsay which is second, third or fourth-hand carries proportionately higher risks of distortion and concoction than first-hand hearsay. Where hearsay is admitted, our view is that fact-finders should be specifically warned of its potential defects. We can have confidence that they will observe these warnings, as they are expected to understand complex warnings in other fields of evidence. We shall return to these conclusions when making our recommendations for reform.
3.38 In the next Part we set out the defects of the hearsay rule and its exceptions.
FOOTNOTES TO PART III
(1) Teper v R [1952] AC 480, 486, cited with approval by Lord Oliver of Aylmerton in Kearley [1992] 2 AC 228, 259, and in Blastland [1986] AC 41, 54, by Lord Bridge of Harwich, with whom Lords Fraser of Tullybelton, Edmund-Davies, Brightman and Templeman agreed.
(2) Per Lord Normand in Teper v R [1952] AC 480, 486.
(3) Paras 6.3 6.7 of the consultation paper.
(4) [1965] AC 1001.
(5) These records would now be admissible under s 24 of the 1988 Act: see paras 2.15 2.16 above (and, for more detail, paras 4.28 4.35 of the consultation paper).
(6) Myers v DPP [1965] AC 1001, 1024.
(7) Per Lord Ackner in Kearley [1992] 2 AC 228, 258, citing Professor Cross in the 5th edition of Cross on Evidence. His Lordship commented that "Some recent appeals regretfully demonstrate that currently that anxiety is fully justified".
(8) CLRC Evidence Report, para 229; Draft Criminal Evidence Bill, cl 32(1).
(9) "Not the least of the arguments against the Committees proposals is the advantage that would be taken by such criminals of the opportunities afforded them by this part of the Bill": General Council of the Bar, Evidence in Criminal Cases; Memorandum on the 11th Report of the Criminal Law Revision Committee (1973).
(10) A Trankell, Reliability of Evidence (1972) pp 5664.
(11) Paras 6.8 6.18 of the consultation paper.
(12) See para 3.23 below.
(13) Some respondents thought we were too conservative in excluding multiple hearsay; others thought that the line between first-hand and more remote hearsay is irrelevant because cross-examination is impossible in both cases.
(14) This may arise eg in the case of a business document, or an implied assertion, or a res gestae statement. See paras 8.71 8.77, 7.17 7.21 and 8.114 8.129 below respectively.
(15) Teper v R [1952] 2 AC 480, 486, per Lord Normand.
(16) Paras 6.20 6.29 of the consultation paper.
(17) Collins (1938) 26 Cr App R 177, 182, per Humphreys J.
(18) Mr Justice MacKenna, "Discretion" (1974) 9 Irish Jurist (NS) 1, 10, adopted by Lord Devlin in The Judge (1979) p 63.
(19) Eg Lord Roskill: "The picture of the lynx eyed judge who can always detect truth from falsity at a glance is not one which I would ever have claimed for myself, and I do not believe it is realistic". Hansard (HL) 20 October 1987, vol 489, col 82; Henry Cecil (Judge Leon) Just Within the Law (1975) pp 179180; Lord Wigoder, speaking in a House of Lords debate on the Criminal Justice and Public Order Bill 1994: "The problem is how does one decide which is the truth. It is not by looking at the witness and judging by his or her demeanour. That is no test and we all know the dangers of that": Hansard (HL) 5 July 1994, vol 556, col 1261. Lord Wigoder was speaking during the debate on corroboration about witnesses who relate sexual episodes, ie complainants.
(20) Reviews of the literature can be found at O G Wellborn, "Demeanor" (1991) 76 Cornell LR 1075, and J A Blumenthal, "A Wipe of the Hands, A Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility" (1993) 72 Neb L Rev 1157.
(21) J R Spencer and R Flin, The Evidence of Children: The Law and the Psychology (2nd ed 1993) pp 280281.
(22) See para 6.30 of the consultation paper.
(23) These points are made in the standard direction given to a jury: see para 3.23 below.
(24) Including the South Eastern Circuit and Professor Peter Murphy.
(25) See para 3.23 below.
(26) Teper v R [1952] AC 480, 486, per Lord Normand.
(27) CLRC Evidence Report, para 280(vi).
(28) Hayes [1977] 1 WLR 234, 237, per Bridge LJ.
(29) Including JUSTICE, Witnesses in the Criminal Courts (1986) p 7, citing the Magistrates Association, the Justices Clerks Society and the Law Society as generally supporting this approach; and a majority of the CLRC in its Evidence Report (paras 279281).
(30) Wigmore on Evidence, vol 5, para 1362, suggests that the oath adds little to cross-examination, which is the real test.
(31) Paras 6.31 6.35 of the consultation paper.
(32) Teper v R [1952] AC 480, 486, per Lord Normand.
(33) The Pigot Report (Report of the Advisory Group on Video Evidence, Home Office, 1989), for example, describes cross-examination as "essential": para 2.2. Zuckerman describes it as the "most effective method for testing a witnesss evidence": The Principles of Criminal Evidence (1989) p 93.
(34) Hansard (HL) 20 October 1987, vol 489, col 78. See also similar comments made in the same debate by Lord Hutchinson of Lullington: ibid, col 90.
(35) Sir Matthew Hale, The History of the Common Law of England (3rd ed 1739).
(36) Wigmore on Evidence, vol 5, para 1367.
(37) See paras 6.43 6.50 of the consultation paper.
(38) ALRC, Research Paper No 8, Manner of Giving Evidence (1982) ch 10, para 5. Other criticisms referred to in paras 6.43 6.60 of the consultation paper are that direct and leading questions produce less accurate answers than encouraging free report; that cross-examination does not necessarily aim to elicit the truth, but to challenge or correct what has just been heard; that aggressive questioning can confuse and frighten witnesses so that they agree with everything or become incoherent, or may be discouraged from ever testifying; and that the fact that a witness contradicts earlier evidence does not necessarily help fact-finders decide which account to believe.
(39) Eg Myers v DPP [1965] AC 1001: see para 3.2 above for the facts. Consider also the case where the witnesss observational powers and sincerity are not in issue, as in Hovell (No 2) [1987] 1 NZLR 610, where the New Zealand Court of Appeal held that there was nothing which the victim could have been asked which could have shed light on the live issue of identity.
(40) J R Spencer and R Flin, The Evidence of Children the Law and the Psychology (2nd ed 1993) ch 10. See also "Bearing Witness",Community Care w/e 30 April 1994.
(41) See para 6.62 of the consultation paper.
(42) Blastland [1986] AC 41, 54, per Lord Bridge of Harwich.
(43) Sir Patrick Devlin, Trial by Jury (Revised 3rd impression 1965) p 114.
(44) Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial (3rd ed 1963) p 207.
(45) See the argument in favour of such research set out by A Ashworth and R Pattenden, "Reliability, Hearsay and the English Criminal Trial" (1986) 102 LQR 292, 331.
(46) Report of the Royal Commission, ch 1, para 8; recommendation 1, p 188.
(47) "Juries must stand up and be counted", The Times 17 August 1993.
(48) New South Wales Law Reform Commission, The Jury in a Criminal Trial (1986 No 48) para 6.30.
(49) ALRC, Evidence (Interim) (1985 ALRC 26) vol 1, para 75.
(50) Crown Court study (Research Study No 19) p 216.
(51) S Landsman and R F Rakos, "Research Essay: A Preliminary Empirical Enquiry Concerning the Prohibition of Hearsay Evidence in American Courts" (1991) 15 Law and Psych Rev 65; and P Miene, R C Park and E Borgida, "Juror Decision Making and Evaluation of Hearsay Evidence" (1992) 76 Minn LR 683.
(52) See para 6.68, n 88 of the consultation paper.
(53) Before this direction was issued, a judge could use the direction approved by the Court of Appeal in Cole [1990] 1 WLR 866, 869.
(54) CLRC Evidence Report, para 247.
(55) See para 3.20 above.
(56) See para 2.3 above, and paras 2.5 and 6.77 of the consultation paper.
(57) The judge is advised to tell the jury:
You must not assume that a defendant is guilty or that he is not telling the truth because he has previous convictions. Those convictions are not relevant at all to the likelihood of his having committed the offence. They are relevant only as to whether you can believe him. It is for you to decide the extent to which, if at all, his previous convictions help you about that.
But in relation to the defendant of good character the judge will say:
In the first place, the defendant has given evidence, and as with any man of good character it supports his credibility. Credibility simply relates to the confidence which you may have in the truthfulness of his evidence, that is whether you can believe him In the second place, the fact that he has not previously committed any offence may mean that he is less likely than otherwise might be the case to commit this crime now
Other judicial warnings which may be difficult if not impossible to follow are considered in Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996) LCCP No 141.
(58) See, eg, paras 6.76 and 6.78 of the consultation paper.
(59) See para 6.80 of the consultation paper.
(60) Including nine High Court judges and the General Council of the Bar.
(61) Kearley [1992] AC 228, 278C, per Lord Oliver of Aylmerton.
(62) M DamaÅka, "Of Hearsay and its Analogues" (1992) 76 Minn LR 425.
(63) The prosecution must disclose to the defence evidence on which it intends to rely, except in the case of summary offences: see para 11.2, n 5 below.
(64) See para 6.84 of the consultation paper.
(65) See paras 12.2 12.8 below.
(66) See Sparks [1964] AC 964 (see para 4.4 below); Blastland [1986] AC 41 (see paras 4.5 4.9 below); Harry (1988) 86 Cr App R 105 (see para 7.12 below); Wallace and Short (1978) 67 Cr App R 291 (see para 4.12 below); Beckford and Daley [1991] Crim LR 833 (see para 6.45 below).
(67) See para 6.87 of the consultation paper.
(68) Coy v Iowa 487 US 1012, 1018 (1988) per Scalia J.
(69) See, eg, Sir Matthew Hale, The History of the Common Law of England (3rd ed 1739).
(70) The right to confront an adverse witness is "basic to any civilised notion of a fair trial": Hughes [1986] 2 NZLR 129, 148, per Richardson J. See also J R Spencer and R Flin, The Evidence of Children: the Law and the Psychology (2nd ed 1993) pp 277279. In Herbert v Superior Court 117 Cal App (3d) 850 (1981) it led to the conviction being quashed where the judge had permitted the five-year-old witness to turn her chair away from the accused.
(71) Eg s 25 of the New Zealand Bill of Rights Act 1990: see para 3.14 in Appendix B of the consultation paper. In the United States the Sixth Amendment to the Constitution guarantees the right of a defendant "to be confronted with the witnesses against him": see para 4.18 in Appendix B of the consultation paper. In Chambers v Mississippi 410 US 284 (1973) the United States Supreme Court held that this constitutional right also entailed the right to cross-examine the accuser. Article 6(3)(d) of the Convention also addresses this issue: see paras 5.9 5.11 below.
(72) In Cooper v Schaub [1994] Crim LR 531 the Court of Appeal held that, where the witness is an adult, screens should be used only in the most exceptional cases. However, in Foster [1995] Crim LR 333 the Court of Appeal confirmed that the correct test is that set out in X, Y and Z (1990) 91 Cr App R 36: "the court must be satisfied that no undue prejudice is caused to the defendant".
(73) See s 32 of the 1988 Act.
(74) Such as the impossibility of obtaining the evidence directly from the witness in the courtroom: see para 6.94 of the consultation paper.
(75) Nor, we understand, have the Scottish courts since the Civil Evidence (Scotland) Act 1988 abolished the hearsay rule for civil proceedings in that jurisdiction. The Civil Evidence Act 1995, abolishing the hearsay rule in England and Wales, came into force on 31 January 1997 (except for ss 10 and 16(5)) and it is too early to assess its effect.
(76) See para 6.97 of the consultation paper.
(77) See para 6.99 of the consultation paper.
(78) By Jowitt J and the Wales and Chester Circuit.