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You are here: BAILII >> Databases >> The Law Commission >> Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(6) (19 June 1997)
URL: http://www.bailii.org/ew/other/EWLC/1997/245(6).html
Cite as: [1997] EWLC 245(6)
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PART VI
THE SIX OPTIONS FOR REFORM
6.1 We have already concluded that change is needed, and rejected the first option put forward in the consultation paper namely preserving the present law. (1) We now consider the options for reform. In Part X of the consultation paper we considered six such options: the "free admissibility" approach; (2) the "best available evidence" principle; (3) an exclusionary rule with an inclusionary discretion; (4) adding an inclusionary discretion to the current scheme; (5) categories of automatic exceptions; (6) and, finally, categories of automatic exception plus a limited judicial discretion to admit evidence where the justice of the case requires it. (7) Each of these options has an underlying justification for admitting hearsay evidence either that it is sufficiently reliable to be safely admitted, or that it is necessary to admit it in hearsay form because it would not otherwise be available to the court at all.
6.2 In the consultation paper we doubted whether approaches which leave admissibility entirely to the discretion of the court, or which operate automatically with no scope for a rule to be shaped to the individual case, would be appropriate. We provisionally concluded that it might be best to adopt a hybrid approach with a very limited scope for the exercise of discretion. (8) This approach was strongly supported on consultation.
OPTION 2: THE FREE ADMISSIBILITY APPROACH
6.3 This option would entail the complete abolition of the hearsay rule. All relevant evidence would be admitted unless excluded on some other ground (for example, because it discloses that the accused has a criminal record, or because it would divert the attention of the fact-finders to irrelevant matters). Under this option, evidence would not need to meet any standard of reliability, nor to be unavailable in any other form, in order to be admitted.
Advantages
6.4 All the technicalities about the definition of hearsay and the scope of its exceptions would become irrelevant. There would, for example, be no problems with "implied assertions"; (9) the distinctions between real and hearsay evidence would cease to be significant.
6.5 Fact-finders would have the maximum amount of information before them on which to base their decision. There would be less danger of inconsistencies arising between the decisions of civil trials and criminal trials on the same facts, which can happen at present because not all the facts available to the civil tribunal are available to the criminal court.
6.6 The scope for the exercise of judicial discretion, with its ensuing disadvantages, (10) would be kept to a minimum the common law discretion (11) and the discretion under section 78(1) of PACE to exclude prosecution evidence.
6.7 There would be no danger of cogent evidence being kept from the court. This is particularly important if the evidence tends to exonerate the accused. (12)
Disadvantages
6.8 The disadvantages of this option fall into two classes: those relating to the quality of the evidence, and those relating to the quantity of the evidence that might be adduced. We start with the criticisms that concern the quality of the evidence.
6.9 A fundamental defect of this option is that it fails to attach any importance to the need for cross-examination. We believe that the basic principle should be that every witness should be cross-examined, and that only where this is not possible should evidence of statements be admitted without cross-examination taking place.
6.10 The lack of opportunity to cross-examine raises another serious disadvantage of this option, namely that it would probably infringe the Convention. Article 6(3)(d) could be contravened if hearsay evidence were adduced against an accused person, particularly if such evidence were admitted even though the witness was available but not called. (13)
6.11 This option would allow fact-finders to hear not only the evidence of unidentifiable persons but also second, third or fourth-hand evidence. The assumption would be that the fact-finders would be able to assess accurately the weight of such evidence; but, as Professor Jackson points out "The truth is not out there waiting to be picked up; it has to be constructed by a procedure". (14) As we have seen from the psychological research, (15) the risks inherent in the repetition of narration from one person to another mean that the dangers of inaccuracy and ambiguity increase with the number of times a story is repeated. The ALRC thought the danger of inaccuracy grave enough to warrant the exclusion of all oral hearsay which was second-hand or more remote. (16)
6.12 The weaknesses of second or third-hand evidence would almost certainly still be pointed out by the judge to the jury, or by the clerk to the magistrates, even if there were no exclusionary rule. The direction that the judge would have to give could be extremely complicated, especially if the hearsay were, say, partly second-hand, partly third-hand and partly fourth-hand. A jury is likely to be easily confused.
6.13 Turning to the quantity of evidence, this option would leave the court open to a vast amount of evidence, much of it superfluous. It would be very tempting for a defendant to put before the court every conceivable piece of evidence in the hope of so confusing the fact-finders that they could not be sure of his or her guilt. There would be a very strong temptation for judges or magistrates to exclude evidence on the ground that it was insufficiently relevant: within a short time a body of cases would have developed on the question of what was or was not sufficiently relevant. We surmise that judicial suspicion of hearsay evidence might cause the hearsay rule to resurface in the exercise of this discretion.
6.14 There is also a substantial possibility that parties would soon become alert to the danger that the tribunal of fact would be sceptical of any evidence which was not first-hand: they might wish to bolster the credibility of absent witnesses by seeking to convince the court with more evidence that there were genuine reasons for the absence of the witnesses. In the Crown Court at present, evidence relating to the unavailability of witnesses is presented to the judge: if this option were adopted it is conceivable that parties would seek to present evidence about a witnesss unavailability to the jury. For all these reasons we provisionally rejected this option. (17)
The response on consultation
6.15 Out of the 31 respondents who dealt with this option, only the Society of Public Teachers of Law had any sympathy for it. Even this was equivocal, with only some of the group being attracted to it. There was strong opposition to this option: for example, the Criminal Bar Association was troubled by "the very real risk of injustice by the admission of such evidence incapable of challenge or scrutiny in cross-examination". The view of the Law Society was representative of others in stating that "there would exist a real danger of possible miscarriages of justice and the breakdown of the system because of the volume of material", while Curtis J predicted that if accepted it would "result in a costly free-for-all which will ensure few cases end in an acceptable time".
6.16 Personal experience of practitioners may or may not support faith in the abilities of fact-finders, be they stipendiary magistrates, lay magistrates, or jurors, not to be over-impressed by hearsay evidence. However, no research on actual jurors is possible. (18) In the absence of evidence that such faith is well-founded, we think caution is advisable. Taking into account all these arguments as well as those put forward in the consultation paper, we reject this option.
OPTION 3: THE "BEST AVAILABLE EVIDENCE" PRINCIPLE
6.17 Under this principle, the court would be required to hear first-hand evidence when it was available but if it was unavailable, the court would have to take the best evidence that it could obtain. This option is very similar to the German approach. (19) In Germany, the court has a duty to seek out whatever is likely to reveal the truth. If first-hand evidence were available, this would not mean that second-hand evidence was inadmissible, only that the court should seek out the first-hand witness. The directness of the evidence would go to weight and not to admissibility. There would be no automatic bar on unreliable witnesses (subject, of course, to the discretions at common law and under section 78(1) of PACE).
6.18 This option would have the advantages of the "free admissibility" option, (20) in that the maximum information would be available to the fact-finders, and the technicalities of the hearsay rule and its exceptions would disappear. At first sight the disadvantages of that option would also apply, but we considered in the consultation paper whether the duty to call the first-hand source where available would mitigate any of them.
6.19 We pointed out that there is a fundamental difference in approach between the inquisitorial system which operates in Germany and the accusatorial system operated in England and Wales. The German system is operated by a professional judge who may make his or her own investigations before the trial. (21) By contrast, in England and Wales judges and magistrates do not take a comparable active role. It is difficult to see how, under our system, this option could be policed.
6.20 We also provisionally concluded that another significant difficulty with this option would be how to ensure that the parties respected the obligation to produce the source of the evidence where possible. If, for example, the source was supposed to be available, but failed to attend on the day of trial, there might be no way of adducing the better evidence.
6.21 We accepted that there would be less danger of fabricated evidence under this option than under the free admissibility system. (22) We referred to a problem which could arise where the source of the evidence was the accused. In most cases he or she would be available to the court, in the sense of being present in the court room, but his or her oral evidence would be available to the court only if he or she chose to go into the witness box. If the accused did not so elect, the court would not be able to hear the best available evidence; a policy decision would then have to be made on the question whether hearsay evidence should be accepted in such circumstances. The alternative would be to give the court the power to require the accused to give evidence, which we did not believe to be a practical option. (23)
6.22 On consultation, 33 respondents dealt with this point. 30 agreed with our provisional rejection of this option. The majority agreed with us that this option was not suitable to an adversarial system, and that judges and magistrates would have to adopt an investigatory role which is alien to our system. The fear of manipulation of witnesses was also raised. JUSTICE said this option could lead to lengthy legal argument as to why the best evidence was not available, and to manipulation of proceedings, delays and adjournments. Support for our provisional conclusion came from many different constituencies, (24) including the Society of Public Teachers of Law, the Law Society, the General Council of the Bar, the Criminal Bar Association and numerous judges, (25) as well as the Western and Wales and Chester Circuits.
6.23 There was a significant, but very small, minority in favour of this option. Professor John Spencer, who acted as our consultant in the preparation of the consultation paper, argues that there should not be an exclusionary rule but an inclusionary one, under which no hearsay would be excluded as such, but each side would be obliged to produce the original source of its information if that source is still available. (26) He stresses that this option has been supported by many eminent writers in the common law world. (27)
6.24 On a theoretical level, Professor Spencer argues that judges and magistrates do not have a wholly passive role: "They do have certain powers and duties to see that the court gets to the truth". This is indeed the case, but we do not think that it would be appropriate within our system for the judge or magistrate to "descend into the arena" (28) in the way which would seem to be necessary under Professor Spencers preferred option.
6.25 On the problem of how the requirement to produce the source could be policed, Professor Spencer wrote:
If one side tried to produce X with the sole purpose of repeating to the court what Y had told him, the judge nudged if need be by counsel for the other side would inquire if Y was later appearing as a witness. If the answer was "Yes", the judge would inquire why it was therefore necessary to hear the tale second-hand from X first, and if there was no convincing reason, (29) the judge would tell X to go home because his evidence was redundant. If the answer was "No", the judge would ask why not. The side calling X would then have to show that Y was unavailable for one of a number of reasons specified by law and if they could not do this, they would not be allowed to use X as a substitute for Y. (30)
6.26 This view was supported by Professor John Jackson and the Standing Advisory Committee on Human Rights. Professor Jackson believes that we "should have approached the subject on the basis that relevant hearsay should be admissible except where there is a good reason for exclusion".
6.27 We have given very careful consideration to the arguments of Professors Jackson and Spencer, but have come to the clear conclusion, in common with the vast majority of our consultees, that we cannot support this option. We envisage frequent arguments as to whether hearsay should be admitted. As we have pointed out, (31) it would be difficult to ensure that the parties respected the obligation to produce the source of their evidence where possible. We could not find a cogent answer to this point.
6.28 We were also impressed by the hostility to this option from those who operate in the magistrates courts. (32) This is hardly surprising because it is difficult to see how the option could work in summary trials. Magistrates would have to hear representations about what was the best evidence before deciding on admissibility. But we think it would be unacceptable for the Crown Court and the magistrates court to have differing rules of admissibility for hearsay, because the parties would not know what evidence would be admissible until the mode of trial had been decided.
6.29 Again, there would be problems with juries hearing evidence and then being instructed to disregard it, and it is significant that jury trials are not common in Germany. The type of problem that would arise appears from an example given by Professor Spencer in which a witness (A) referred, in his evidence, to something which another witness (B) had told him. After A had finished his evidence the judge would inquire if B was coming to give evidence. If the answer was in the negative, the judge would have to tell the jury to disregard what A had said that B had told him, unless B was absent for an acceptable reason. We believe that it is not desirable to have a system in which the parties can adduce evidence freely but the judge must then tell the jury to disregard some of it, or in which magistrates hear evidence which they must then disregard.
6.30 We note also that the German system requires hearsay to be corroborated. (33) We have previously referred to the cogent and compelling objections to a regime which requires hearsay to be corroborated. (34) This Commission advocated the abolition of the requirement of corroboration in criminal cases, and these proposals were subsequently enacted. (35) On further consideration, we believe that it would be wrong to introduce such a system into the law of hearsay.
6.31 By way of footnote, we would add that we are troubled by the change of attitude that this option would require on the part of practitioners and judges. It would be necessary for them to change habits of a life-time and be re-educated. We do not underestimate this task, and this consideration fortifies the conclusion that we had already reached.
6.32 Having carefully considered the arguments of Professors Spencer and Jackson, we agree with the vast majority of our consultees that this option should be rejected.
OPTION 4: AN EXCLUSIONARY RULE WITH AN INCLUSIONARY DISCRETION
6.33 Under this option, (36) there would be a definition of hearsay and a rule stating all hearsay is prima facie inadmissible. In place of the present exceptions, hearsay would be admissible, as a matter of law, where the party seeking to adduce it could satisfy the court, to the applicable standard of proof, (37) that the evidence was sufficiently reliable to merit being heard and that it was necessary to admit it in the interests of justice. Once the evidence was admitted, the fact that it was hearsay would go to its weight; the jury would be directed accordingly and the magistrates would be so advised by their clerk.
6.34 The implementation of this option would mean that many of the anomalies in the present rules would disappear. For instance, even if "implied assertions" were left within the scope of the rule against hearsay, if evidence of such an assertion were reliable enough it would be admitted anyway.
6.35 Adrian Zuckerman has suggested that
if the prosecution wishes to adduce hearsay evidence it must convince the court that it is of such probative weight that no injustice will be caused to the accused by being deprived of the opportunity of cross-examination. As regards hearsay adduced by the accused, the general principle should be that it would be admissible whenever exclusion would undermine the interests of justice. (38)
The main advantages of this option would be that only evidence of a certain quality would be introduced, and there would be no superfluous evidence.
6.36 Against this must be considered the disadvantages. These include all the problems of basing a scheme on judicial discretion namely, the danger of inconsistent decisions, the uncertainty as to which evidence would be admissible, and the particular difficulty in the magistrates courts that the magistrates would have to hear the evidence in order to decide on its admissibility. We considered these problems sufficiently serious to disqualify this option. (39)
6.37 On consultation, this option was strongly and cogently supported by Adrian Zuckerman, (40) and a number of respondents, including some judges, (41) were attracted by it. However, the force of the opposition to it was considerable, with the Law Society stating that it would "create hurdles in the operation of a court system", and the Crown Prosecution Service believing that, compared with the present system, "it would be even more difficult to understand and even less certain in its practical operation". The General Council of the Bar rejected it on the ground that any new scheme "must replace the present uncertainties with fewer not more uncertainties".
OPTION 5: ADDING AN INCLUSIONARY DISCRETION TO THE EXISTING SCHEME(42)
6.38 One of the most forceful criticisms that we make of the current operation of the hearsay rule is that reliable evidence can be excluded because it does not fall within one of the recognised categories. (43) This option tries to address this defect by retaining the hearsay rule that we have at present, and the existing exceptions, but adding a residual judicial discretion. This would be used only in exceptional circumstances, to admit an item of hearsay which does not fall within any of the existing categories, but which is nevertheless sufficiently reliable and necessary to warrant admission. (44)
6.39 A variant of this option would be to allow the courts to create new categories of hearsay exceptions where it was deemed necessary. This would involve a simple reversal of Myers v DPP, (45) which precluded the judicial creation of further exceptions or the extension of existing exceptions. Any such additions would, however, extend only to the present case and no further, even if logic demanded it. We think that piecemeal variation of the rule in this way would in principle be undesirable. A further variation of this option, suggested by Peter Carter, (46) would not only reverse Myers (thus allowing the courts to create new categories of exceptions) but also permit the admission of sufficiently reliable evidence on a one-off basis.
6.40 This option and its variants would enable evidence to be adduced, if it were sufficiently reliable, where it might otherwise be inadmissible under the present rules, for example because it was an "implied assertion". It would also facilitate the admission of reliable first-hand oral hearsay, which still remains inadmissible after the passing of the 1988 Act. Another argument in favour of this option is that articulated by Lord Devlin, (47) that the judiciary may not be entitled to make new laws but they are better equipped than legislators to make new rules governing the admissibility of evidence.
6.41 However, this option does not address the other problems arising from the current rule which are set out in Part IV above. Moreover, there would be serious problems in ensuring that the appropriate standards of reliability and necessity were consistently applied in different courts. This would make it difficult to predict what evidence would be held admissible. (48) For both these reasons our provisional view was to reject this option.
6.42 On consultation it found minimal support: only three respondents favoured it. (49) Those hostile to it adopted our approach. (50) Having considered the views expressed on consultation, we believe that they fortify our provisional view, and that this option must be rejected because of its uncertainty.
OPTION 6: CATEGORIES OF AUTOMATICALLY ADMISSIBLE EVIDENCE
6.43 Under this option, if hearsay fell within one of certain specified categories it would automatically be admitted, subject only to the general and established discretions (at common law and under section 78(1) of PACE) (51) to exclude prosecution evidence. In the consultation paper we explained that this option assumes the ability of juries and magistrates to appreciate the weakness of hearsay evidence and properly to appraise its weight. (52) If hearsay evidence fell within one of the defined categories it could be adduced, and the tribunal of fact would be invited to form an opinion on its merits. The exceptions could be drafted so as to cover not only cases where direct evidence was unavailable but also cases where the hearsay was of a kind likely to be reliable.
6.44 The parties would be able to know in advance what evidence would be admissible (subject to the two discretions in respect of prosecution evidence). There would be a more uniform approach throughout all courts of criminal jurisdiction. Court time would not be wasted, and magistrates would not hear evidence which they would then have to ignore.
6.45 The principal disadvantage would be that it is quite likely that some unforeseeable cases of cogent hearsay evidence might fall outside the categories, however carefully drafted they were. We were influenced by Beckford and Daley, (53) in which the Court of Appeal held that evidence had correctly been regarded as inadmissible at trial but went on to quash the resulting conviction because its knowledge of the existence of the evidence left it with a "lurking doubt". That case concerned an admission by a party to the proceedings which was not admissible on behalf of the prosecution. Beckford and Daley has since been disapproved, and the latest authority indicates that a defendant may adduce an admission by a co-defendant even though the prosecution could not do so. (54) However, although the particular problem which gave rise to injustice in Beckford and Daley has been resolved, for the time being, we remain concerned about the possibility of cogent hearsay evidence (particularly evidence which tends to point to the innocence of the accused) being inadmissible because it does not fit into any of the exceptions.
6.46 As an example, we look at the facts of Myers. (55) Myers and Quartey were charged with murder. They ran "cut-throat" defences, each saying the other was entirely responsible. Myers had made three separate admissions which tended to support her co-defendants contention that he had had nothing to do with the murder. Because the admissions tallied with the co-defendants defence they were very important evidence in his favour. They were admitted in evidence. If Myers had not been charged in the same proceedings, say because she had been dealt with in some other way, or had died before the trial, those admissions would not have been admissible. We do not suggest that all confessions to crimes by people not charged are worth admitting in evidence; but, where they are, it is clear that a miscarriage of justice could occur if there is no way that they can be admitted, however reliable. (56) We therefore remain convinced that an option which lacks an inclusionary discretion is seriously defective.
6.47 We were disturbed by the inflexibility of this option, and provisionally rejected it for this reason. (57) On consultation, it was rejected by the vast majority of those who responded on this point. Its inadequacy is further illustrated by the issue of frightened witnesses. For cogent reasons which we develop later, (58) we have concluded that the statements of frightened witnesses should not be automatically admissible, but only with the leave of the court. This shows that not every hearsay exception can be framed as a category of automatically admissible evidence.
OPTION 7: CATEGORIES OF AUTOMATIC ADMISSIBILITY PLUS A LIMITED INCLUSIONARY DISCRETION(59)
6.48 In exploring the above options, we concluded that it is essential to strike the right balance between certainty and flexibility. If the rules of admissibility depend entirely on the exercise of judicial discretion, then there is too much uncertainty (the major defect of option 4); if there is no judicial discretion then cogent hearsay evidence could be excluded (the defect of option 6). We therefore turned to option 7, which combines rules of automatic admissibility (where discretion does not play a part) with an inclusionary discretion (to ensure fairness in the individual case).
6.49 Option 7 is, in essence, the same as the previous option, save that the inflexibility of that option would be remedied by the addition of a very limited discretion to admit what would otherwise be inadmissible hearsay. This we call the "safety-valve" provision. In other words, the defects of option 6 would be removed without re-introducing all the disadvantages that we have described as attending an open judicial discretion. (60)
6.50 Our provisional view was that there should be an inclusionary discretion of the kind we have described. (61) This central conclusion was approved by a clear majority of those who responded on the choice of option. Moreover, those who rejected it held widely differing views as to what the alternatives should be: their preferences were spread over each of the remaining six options and some additional individual variations, no single proposal being supported by more than four respondents.
6.51 Those who favoured our preferred option were content generally to rely upon and adopt the arguments in the consultation paper. The Department of Trade and Industrys response was representative:
Option 7 appears to resolve the difficulties caused by the exclusion of cogent and reliable evidence, while clarifying and extending (where appropriate) the categories of admissible hearsay and providing for their automatic admission.
6.52 Broad support for this option came from many different constituencies: for example, of the judges, Stuart-Smith and Phillips LJJ, together with Buxton, Alliott, Tuckey, Dyson, Jowitt, Garland, Wright, Steel, Buckley, Blofeld, and Bracewell JJ, supported this option, as did the Recorder of Liverpool and many other circuit judges. (62) Professional bodies such as the Law Society, the London Criminal Courts Solicitors Association, the General Council of the Bar and the Serious Fraud Office were also in favour.
6.53 The nature and force of the support for option 7 reinforced our provisional view that it was the best option. We recommend that there should be a general rule against hearsay, subject to specified exceptions, plus a limited inclusionary discretion. (Recommendation 1)
6.54 In the next Part we consider how an exclusionary hearsay rule should be formulated, and in Part VIII we consider in detail how the recommended option should work.
FOOTNOTES TO PART VI
(1)Para 4.62 above.
(2) Option 2: see paras 6.3 6.16 below and paras 10.3 10.27 of the consultation paper.
(3)Option 3: see paras 6.17 6.32 below and paras 10.28 10.35 of the consultation paper.
(4)Option 4: see paras 6.33 6.37 below and paras 10.36 10.55 of the consultation paper.
(5)Option 5: see paras 6.38 6.42 below and paras 10.56 10.64 of the consultation paper.
(6) Option 6: see paras 6.43 6.47 below and paras 10.65 10.72 of the consultation paper.
(7)Option 7: see paras 6.48 6.53 and paras 10.73 10.77 of the consultation paper.
(8) Paras 9.19 9.25 of the consultation paper.
(9)See paras 7.5 7.9 below.
(10) On which, see paras 4.28 4.31 above.
(11) See PACE, s 82(3).
(12) This advantage is particularly important in relation to the Convention: see para 5.25 above.
(13) See Saïdi v France (1994) 17 EHRR 251, para 5.15 above.
(14)J D Jacksons review of W Twinings Theories of Evidence: Bentham and Wigmore (1985): (1987) 38 NILQ 98, 100.
(15)Para 3.6, n 10 above, and para 10.17 of the consultation paper.
(16)ALRC, Evidence Report (1987 ALRC 38) para 139: ALRC Evidence (Interim) (1985 ALRC 26) vol 1, paras 664 ff.
(17)See para 10.27 of the consultation paper.
(18) Contempt of Court Act 1981, s 8. See para 3.21 above.
(19)See Appendix B of the consultation paper.
(20) See paras 6.4 6.7 above and paras 10.8 10.14 of the consultation paper.
(21)See Appendix B and paras 5.22 5.36 of the consultation paper for a more detailed explanation of the German system.
(22) Under this option, witnesses who gave statements to the police would be less sure that they could escape going into the witness box, and there would therefore be less incentive to make untruthful statements.
(23) But in certain circumstances s 35 of the Criminal Justice and Public Order Act 1994 allows the jury or magistrates to draw "such inferences as appear proper" from an accuseds failure to testify. This may put pressure on the accused to give evidence.
(24) In some cases, although there was not explicit support for the provisional conclusion, it was implicit in the preference for option 7.
(25)Including Stuart-Smith and Phillips LJJ, Dyson, Jowitt, Wright, Steel, Buckley, Blofeld and Bracewell JJ.
(26)See "Hearsay Reform: A Bridge not Far Enough" [1996] Crim LR 29.
(27)Such as Bentham, Thayer, McCormick and Glanville Williams. References to their writings are set out in [1996] Crim LR 29, 30, at nn 69.
(28) S Doran, "Descent into Avernus" (1989) 139 NLJ 1147, 1160, quoting Lord Greene MRs judgment in Yuill v Yuill [1945] 1 All ER 183, 189.
(29) As there might be for example, if the incident took place a long time ago, X told Y about it immediately, Y recorded the statement in writing as X made it, and X is now likely to have no more than a hazy recollection of what happened. (Footnote in original)
(30) [1996] Crim LR 29, 30.
(31) At para 6.20 above.
(32)The Chief Metropolitan Stipendiary Magistrate, the Justices Clerks Society and the Magistrates Association.
(33)See para 5.34 and Appendix B of the consultation paper. In a recent case the Bundesgerichtshof held that "The evidence of a witness from hearsay can properly found a conviction only when its contents are confirmed by other evidence which is of greater probative value to the court": BGH, 08.01.1991 (StV 1991, 197).
(34)See paras 5.35 5.39 above.
(35)Law Com No 202, which was implemented by the Criminal Justice and Public Order Act 1994, s 32.
(36)Which was proposed by the NZLC in its Preliminary Paper No.15, Evidence Law: Hearsay (1991).
(37)Ie on the balance of probabilities for the defence and beyond reasonable doubt for the prosecution.
(38)A Zuckerman, Principles of Criminal Evidence (1992) p 221.
(39)Para 10.55 of the consultation paper.
(40)"The Futility of Hearsay" [1996] Crim LR 4, 15.
(41) Eg Poole J, Wright J and the North Eastern Circuit.
(42) Sir Rupert Cross thought this to be the least amendment which should be made to the hearsay rule: "The Scope of the Rule Against Hearsay" (1956) 72 LQR 91, 115.
(43) See paras 4.3 4.27 above.
(44) An example might be the Canadian case R v D(D) [1994] CCL 5873 (North West Territories Supreme Court) where a child who had been sexually abused identified the abuser to various adults but was too traumatised to give live testimony. The hearsay statements to the adults were admitted because the child was not available and because, having regard to the age and development of the child, the consistency of the repetition, the absence of a reason to fabricate and the absence of signs of prompting or manipulation, the evidence met the test of reliability.
(45) [1965] AC 1001.
(46) "Hearsay; Whether and Whither?" (1993) 109 LQR 593.
(47)Lord Devlin, "Judges and Lawmakers" (1976) 39 MLR 1, 13.
(48)See paras 10.62 10.64 of the consultation paper.
(49)Peter Carter QC, Judge Michael Hucker and the Western Circuit.
(50)For example the Law Society said it would lack certainty and it would be difficult to apply the rule consistently and to advise clients, while the General Council of the Bar thought that "any new scheme must replace present uncertainties with fewer not more uncertainties", and that this argument militated against option 5 as well as option 4.
(51) See para 1.31, n 49 above.
(52)See para 10.66 of the consultation paper.
(53) [1991] Crim LR 833. See para 7.48 of the consultation paper.
(54) Beckford and Daley was in conflict with Campbell and Williams [1993] Crim LR 448, and both authorities were reviewed in Myers [1996] 2 Cr App R 335. The Court of Appeal preferred the reasoning in the later case. Leave to appeal to the House of Lords has been granted.
(55) [1996] 2 Cr App R 335.
(56) Another example can be found in the facts of Thomas [1994] Crim LR 745, which are set out at para 10.67, n 81 below.
(57) Paras 10.70 and 10.72 of the consultation paper.
(58) In essence, we believe that the automatic admission of the statements of frightened witnesses would make it too easy for witnesses to avoid cross-examination without good reason. See para 8.58 below.
(59) Such an option would be similar in structure to the scheme of the Federal Rules of Evidence of the United States, which consists of an exclusionary rule, categories of exceptions, and a residual inclusionary discretion.
(60) See paras 9.14 18 of the consultation paper.
(61)See para 10.77 of the consultation paper.
(62)Judge Gareth Edwards QC, Judge Kenny, Judge Colin Colston QC, Judge Tetlow, Judge Deveaux, Judge Graham Jones.