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You are here: BAILII >> Databases >> The Law Commission >> Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(8) (19 June 1997)
URL: http://www.bailii.org/ew/other/EWLC/1997/245(8).html
Cite as: [1997] EWLC 245(8)
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PART VIII
THE EXCEPTIONS TO THE RULE
8.1 In Part VI we concluded that there should be an exclusionary hearsay rule, and that there should be specified exceptions to the rule, plus a limited inclusionary discretion. (1) Our proposed scheme also allows for the preservation of the discretions under section 78(1) of PACE and at common law to exclude prosecution evidence in certain circumstances. In the preceding Part we set out our formulation of the rule, and we now consider the exceptions in detail. We recommend that the specified exceptions should consist of
(1) categories of automatic admissibility where the declarants oral evidence is, for one of certain specified reasons, unavailable (which we call "the unavailability exception");
(2) an exception under which statements made by witnesses who are in fear may be admitted with the leave of the court;
(3) a business documents exception, and
(4) certain preserved exceptions.
8.2 We begin by considering what kinds of hearsay evidence should be automatically admissible where the declarant is unavailable to give oral evidence. (2) We then proceed to consider what kinds of "unavailability" should justify the automatic admission of the declarants statement. (3) In the case of one kind of unavailability, namely where the declarant is too frightened to give evidence, we recommend a separate exception under which the admission of a previous statement would not be automatic (as in the case of the unavailability exception) but would require the leave of the court. (4) We then turn to the exception for "business documents", (5) and then to the admissibility of confessions, mixed statements and denials. (6) Next, we review the other existing exceptions, statutory and common law, that, with one exception, we recommend should be retained. (7) We then discuss the proposed discretion to admit hearsay evidence where the interests of justice so require. (8) Finally we consider whether hearsay should be admissible where the parties agree that it should be admitted. (9)
STATEMENTS BY PERSONS WHO ARE UNAVAILABLE
8.3 In order to formulate our "unavailability exception" we must resolve two issues:
(1) What kinds of hearsay should be automatically admissible where the declarant is unavailable to give oral evidence, for one of the recognised reasons?
(2) What should those reasons be?
What kinds of hearsay should be automatically admissible where the declarant is unavailable?
Oral hearsay
8.4 A major limitation of the present law is that only documentary evidence can be admitted under the 1988 Act: (10) there is no comparable provision for first-hand oral hearsay. In the consultation paper we accepted that oral evidence might on occasion be less cogent than documentary evidence, but our provisional view was that the law should not be limited in this way. (11) Our view has always been that there is no reason to believe that oral evidence is always less cogent or reliable than documentary evidence. We therefore proposed in the consultation paper that the unavailability exception should not be confined to documentary hearsay. This view was accepted by the vast majority of those respondents who addressed the point. Accordingly, we recommend that the unavailability exception should extend to oral as well as documentary hearsay. (Recommendation 4)
Statements by unidentified declarants
8.5 Under the regime we proposed in the consultation paper, before the unavailability exception could be relied upon, the declarant would have to be identified to the satisfaction of the court, thus enabling the opposing party to challenge the declarants credibility and reliability. Our provisional view was that it would not be desirable to allow the admission of a statement by a person about whose identity no, or no adequate, information was available.
8.6 In the consultation paper, we gave the example of the defence calling a witness to say that when he was on a train in a particular foreign city he heard two men he did not know talking about how they carried out a murder for which the defendant was being charged and saying that the defendant had not been there. Our provisional view was that the party tendering the statement should be required to attribute the statement to a particular individual, with sufficient detail of that persons identity for the court to be satisfied that the individual exists, and for the other party to have enough information to enable it to make enquiries about the declarant and to attack the declarants credibility at the trial if it thought it appropriate to do so. (12)
8.7 On consultation a large majority of the respondents who addressed the point agreed with our views, but some respondents were concerned about such a condition applying to business documents. They feared that this would reproduce the situation that arose in Myers, (13) where the identity of the maker of the record was unimportant and the significant fact was that a proper record had been kept. We can reassure those respondents that we did not intend this condition to apply to business documents: our position is still that the business documents exception is separate from the unavailability exception, and the condition that the declarant be identified would not apply to it. (14)
8.8 As regards the unavailability exception, the provisions of Article 6(3)(d) of the Convention are pertinent. In certain circumstances, the admission of a statement by an unidentified person whom the defence has had no chance to question could be in breach of the Convention. (15) We recommend that the unavailability exception should not be available unless the person who made the statement is identified to the courts satisfaction. (16) (Recommendation 5)
Facts of which the declarant could not have given oral evidence
8.9 In the consultation paper, we adopted the approach of other recent legislation. (17) Our provisional view was that no statement should be admissible as evidence of any fact, opinion or other matter contained in it of which the declarant could not have given oral evidence. There was unanimous support for this proposal, and we now recommend its adoption.
8.10 This proposal has two aspects: it excludes hearsay evidence of
(1) facts which are not admissible at all, whoever gives evidence of them; and
(2) facts which are admissible, but of which the declarant could not have given oral evidence.
8.11 In the first place, it would not be possible to adduce hearsay evidence of a fact if even a witness with personal knowledge of the fact could not have given oral evidence of it, because the fact is itself inadmissible. If, for example, the fact stated is the fact that the defendant is of bad character (a fact which may not normally be proved at all), the statement would not become admissible merely because, had the fact stated been an admissible fact, a hearsay exception would have applied.
8.12 Secondly, it would not be possible to adduce hearsay evidence of a fact of which oral evidence could have been given by someone, if it could not have been given by the declarant. This may be so, for example, if the declarant
(1) would not have been competent to give evidence at all, or
(2) had no personal knowledge of the fact stated.
DECLARANT NOT A COMPETENT WITNESS
8.13 The general rule is that all persons are competent to give oral evidence, save for the accused at the instigation of the prosecution, young children, and persons of defective intellect. (18) If the declarant would not have been competent, it would clearly be wrong to treat his or her statement as evidence of its truth.
8.14 The time when the declarant must have been competent as a witness should clearly be the time when the statement was made, rather than when it is sought to adduce it. (19) Suppose, for example, that a person makes a statement when of sound mind and later becomes intellectually defective because of an accident. Although the person may no longer be fit to testify indeed, that may be why he or she is unavailable, with the result that the statement is admissible (20) the quality of the statement will be unaffected.
MULTIPLE HEARSAY
8.15 Where even the declarant had no personal knowledge of the fact stated, the statement is said to be multiple hearsay. Suppose it is sought to prove that A stated that an event had occurred. If A had no personal knowledge of this event, but had been told of it by B, who had seen it, As statement is multiple (in this case, second-hand) hearsay. Assuming that no hearsay exception would have applied, (21) A could not have given oral evidence of the event. Under our recommendation it would follow that As statement would not be admissible evidence of the event even if A were unavailable to testify.
8.16 In the consultation paper we considered, but rejected, the automatic admission of multiple hearsay on the grounds of the declarants unavailability. (22) There are critical differences between first-hand and multiple hearsay. First, in the case of first-hand hearsay, it is possible to question or challenge the person who heard the relevant statement being made, and then assess the weight to be attached to that persons evidence. This is not possible in the case of multiple hearsay. Secondly, as we have already pointed out, (23) we believe that there is a substantial risk, if any degree of hearsay more remote than first-hand hearsay were to be admissible, that unreliable or manufactured evidence might be admitted. Thirdly, a jury would have to be given much more complex directions for multiple hearsay than for first-hand hearsay, (24) and different directions would have to be tailored for each degree of hearsay. There is a substantial risk that the jury would be misled or distracted; in any event, disproportionate time and expense would be spent not only receiving such evidence but also on submissions as to its origins and weight.
8.17 We believe that, in general, multiple hearsay is too unreliable to be admitted; and we do not believe that the unavailability of the declarant is sufficient to justify an exception to this principle. This view was accepted by a large majority of respondents. 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. (25)(Recommendation 6)
Cumulative use of hearsay exceptions
8.18 This recommendation raises a further question. Where the declarant had no personal knowledge of the fact stated, it will normally follow from recommendation 6 that the statement is inadmissible (even if the declarant is unavailable) because the declarant could not have given oral evidence of the fact stated: it would have been hearsay. But what if the declarant could have given oral evidence of the fact stated, because, although the evidence would have been hearsay, a hearsay exception would have applied?
8.19 Suppose, for example, that A said that event x had occurred, and that A knew this because B had seen it happen and had told A about it immediately afterwards, in such circumstances that A could have given oral evidence of Bs statement under the res gestae rule. (26) But A is dead. Should As statement be admissible as evidence of x?
8.20 The statement is multiple hearsay, since A had no personal knowledge of the fact stated. The unavailability exception would not apply if, because A had no such knowledge, A would have been unable to give oral evidence of that fact. But in this case A could have given such evidence by virtue not of personal knowledge, but of the res gestae exception. The question is: should it be sufficient for the purposes of the unavailability exception that the declarant could have given oral evidence of the fact stated, even if that evidence would have been (admissible) hearsay? Or should it be necessary that the declarant could have given oral evidence without resort to a hearsay exception?
8.21 We have concluded that the answer should depend on which hearsay exception would have rendered As oral evidence admissible in other words, how Bs statement (the statement on which the statement of the unavailable declarant A is based) itself comes to be admissible. If B gives evidence, and Bs previous statement is admissible under the rules that we recommend in relation to the previous statements of witnesses, (27) the fact that B is available for cross-examination is in our view sufficient to compensate for the fact that As statement is multiple hearsay. And if Bs statement is admissible on the ground that it was made in a business document, (28) we think that the presumed reliability of such documents is again sufficient to outweigh the drawbacks of multiple hearsay.
8.22 If, however, Bs statement is admissible only on the basis that B is unavailable to testify, or under one of the common law exceptions (such as res gestae) that we recommend should be preserved, (29) we think it would be going too far to permit Bs statement to be proved by means of another hearsay statement merely because the maker of that other statement is unavailable to testify. Our reasons are essentially those that we have given for excluding multiple hearsay in general from the unavailability exception namely that with each additional step in the chain, the risk of error or fabrication increases. The question is whether, although the statement in question is multiple hearsay and may be unreliable, this risk is outweighed by the fact that the declarant is unavailable to testify, and that the statement is therefore the only way in which the evidence can be put before the court. We do not believe that this is so: there comes a point where the need to exclude potentially unreliable evidence must come before the desirability of allowing the court to hear the best evidence available.
8.23 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. (30) (Recommendation 7)
8.24 Some examples may make this recommendation clearer. Suppose that B makes a statement to A; A in turn makes a statement about what B said, but dies before the trial. The death of the declarant is one of the kinds of unavailability that, in general, we recommend should render a statement admissible. (31) Is As statement therefore admissible under the unavailability exception?
(1) It may be that Bs statement is adduced not as evidence of any matter stated but for some other purpose: the fact that it was made may itself be relevant. In that case, oral evidence by A of what B said would not have been hearsay at all, so As out-of-court statement is not multiple hearsay. It is therefore admissible under the unavailability exception.
(2) If Bs statement is adduced as evidence of a matter stated, and does not fall within any hearsay exception, it is itself inadmissible. It cannot be proved at all, let alone by means of another hearsay statement.
(3) If B gives evidence, and Bs statement (though hearsay) is admissible under one of the exceptions that we recommend in respect of the previous statements of witnesses, As statement (though multiple hearsay) is admissible under the unavailability exception.
(4) If Bs statement (though hearsay) is admissible under the exception for business documents, As statement (though multiple hearsay) is admissible under the unavailability exception.
(5) If Bs statement is hearsay and is admissible only under the unavailability exception, or one of the common law exceptions (such as res gestae) that we recommend should be preserved, or both, As statement is not admissible under the unavailability exception. Bs statement must be proved either by evidence which is not hearsay or by hearsay which is admissible otherwise than under the unavailability exception.
8.25 It is not entirely clear whether this recommendation would be more or less strict than the present position. (32) Section 23 of the 1988 Act provides that, where a person is unavailable to testify for any of the reasons there set out, a statement made by that person in a document is admissible "as evidence of any fact of which direct oral evidence by him would be admissible". It does not expressly provide that the statement is not admissible if oral evidence by the declarant would be admissible hearsay. But the shoulder note, "First hand hearsay", suggests that the section was not intended to extend to multiple hearsay in any circumstances; and this would be the literal meaning of the section if, in the phrase "direct oral evidence", the word "direct" were construed in its common sense of "non-hearsay". We believe that this is the better view. In that case, our recommendation would relax the present law, by permitting multiple hearsay where the statement made by the unavailable declarant is about a statement which is admissible without resort to the unavailability exception or a common law exception for example, where the maker of the latter statement gives evidence, and that statement is admitted to rebut a suggestion of recent fabrication. (33)
8.26 If we are wrong in this view, and section 23 can at present be used twice over, or combined with any other hearsay exception, our recommendation would make certain evidence inadmissible which is now admissible namely where the fact to be proved by the statement admissible under section 23 is the making of another statement which is itself admissible only under section 23 or at common law. But the practical effect of the change would be small. This is because evidence cannot be adduced under section 23 if the court directs otherwise on the ground that it ought not to be admitted in the interests of justice; (34) while, if the court thinks that hearsay evidence should be admitted in the interests of justice, our recommendations would enable it to be admitted under the "safety-valve". (35) Our rule against the cumulative use of the unavailability exception, or its combination with the preserved common law exceptions, means only that multiple hearsay would not become automatically admissible in these ways whether or not the court thinks that its admission is in the interests of justice.
Reliance on the exception by a party responsible for the declarants unavailability
8.27 In deciding whether to permit or exclude the admission of hearsay evidence under sections 25 and 26 of the 1988 Act, the court must take into account all the circumstances which appear to it to be relevant. Where appropriate, such circumstances will obviously include the fact that the person tendering the statement has caused the unavailability of the declarant. Such a discretion would not arise in the case of our unavailability exception, because admissibility is automatic. We therefore provisionally proposed that where the person tendering a hearsay statement had caused the unavailability of the declarant, that statement could not be adduced. (36) In making this proposal, we were following the recommendation of the Scottish Law Commission in its recent report. (37) As we pointed out, similar provisions are to be found in the Federal Rules of Evidence (38) and the Evidence Code of the Law Reform Commission of Canada. (39)
8.28 On consultation, the respondents who dealt with this point were unanimously in favour, but we were warned of two outstanding problems. First, a person should not be regarded as responsible for the fact that the declarant cannot or will not give oral evidence where the unavailability arises out of the alleged offence. For example, where the defendant has in fact killed the victim, but before he died the victim was heard to say that he provoked the defendant so that the defendant is not to blame, the defendant should surely be allowed to rely upon this statement in answer to a charge of murder even though he may strictly speaking be "responsible" for the absence of the victim.
8.29 The second problem is that it might be contended that a defendant is "responsible" for the absence of a declarant although the defendant has not done anything to the declarant. For example, a defence declarant may have gone abroad and refused to come back because he is terrified that if he is cross-examined, he may say something (although he does not know what) which might upset or antagonise the defendant, even though he has no grounds for that fear. Professor Sir John Smith helpfully suggested that a person should be regarded as being responsible for the unavailability of a declarant only if he or she deliberately prevents the declarant from attending. The crucial point, it seems to us, is that if a party acts with the intention of preventing a witness from giving evidence, that party should not be able to rely on the hearsay statement of that witness. If the matter is put like this, the defendant in the previous paragraph would be able to adduce the statement of the dead victim, because although he is responsible for the victims unavailability, he did not cause it in order to stop the victim testifying.
8.30 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). (40) (Recommendation 8)
THE BURDEN OF PROOF
8.31 Recommendation 8 raises the question of where the burden of proof should lie, when one party seeks to adduce a statement on the ground that the declarant is unavailable to give oral evidence and the other party alleges that that unavailability has been brought about by the first party. In the consultation paper we expressed the provisional view that the burden of proving the allegation should fall on the party making it. (41) This would in effect amount to an exception to the general rule that it is for the party adducing evidence to show that it is admissible. The justification for reversing the burden of proof is that, if the general rule were applied, the party seeking to adduce the evidence would have to prove a negative, namely that he or she was not responsible; and we consider this undesirable.
8.32 On consultation there was only one dissenter, (42) who thought that to place the burden on the defence when the prosecution was seeking to call hearsay evidence could be open to very considerable abuse. We take that point into consideration; but the defence would need to prove the allegation only on the balance of probabilities. Moreover, if the prosecution were to tender the statement on the basis that the declarant cannot be found, it would be for the prosecution to prove (beyond reasonable doubt) that the declarant had indeed disappeared, as distinct from being kept out of the way. (43) We remain of the view that our provisional approach was correct. 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. (44) (Recommendation 9)
Summary
8.33 In summary, the effect of recommendations 4 to 9 is that where a party is unable to adduce direct evidence, that party should be entitled to adduce first-hand hearsay evidence, whether oral or documentary, as evidence of any matter stated of which the declarants oral evidence would have been admissible (otherwise than by virtue of the unavailability exception or one of the common law exceptions that we recommend should be preserved), provided that
(1) the declarant is identified to the courts satisfaction;
(2) the declarants evidence falls within one of the categories of unavailability that we recommend below; (45) and
(3) the party seeking to adduce the evidence is not shown to have caused the unavailability of the declarant in order to prevent the declarant from testifying.
What kinds of unavailability should make the declarants statement admissible?
8.34 We now turn to examine a number of different reasons why the declarant might be unavailable to give oral evidence. In each case, we consider whether the reason for the declarants unavailability is such as to justify making his or her first-hand hearsay statement automatically admissible.
Death
8.35 In the consultation paper, we provisionally proposed that a statement by a deceased person, whether oral or written, should be admissible in any criminal proceedings. (46) This proposal was accepted by almost all respondents. We recommend that the unavailability exception should apply where the declarant is dead. (47) (Recommendation 10)
Illness
8.36 Our provisional proposal was to follow the wording in section 23(2)(a) of the 1988 Act, which permits certain types of documentary hearsay to be admitted (subject to the exercise of discretion) where the declarant is unfit to give evidence "by reason of his bodily or mental condition". (48) On consultation this proposal was also accepted by almost all respondents. 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. (49)(Recommendation 11)
Absence abroad
8.37 The only people who can be compelled to attend court to give evidence are people within the United Kingdom. (50) Under section 23(2)(b) of the 1988 Act, a statement made by a person in a document is prima facie admissible if the person is outside the United Kingdom and it is not reasonably practicable to secure his or her attendance.
8.38 Our provisional approach was that a party seeking to rely on a persons evidence should make efforts to ensure that that person attends: it is only when those efforts fail that a statement by that person can be adduced under the exception. Our provisional view was that the best test would be one of reasonable practicability. (51) We explained that a test of practicability alone would be unduly onerous: for example, it might be practicable for a foreign declarant to give evidence by live television link, but the expense might not be justified if the evidence was very short and on a minor issue.
8.39 We believe that the merit of a test of reasonable practicability is that it would require the party to make reasonable efforts to bring the person concerned to court, (52) but would also enable the court to take into account all the circumstances of the case. (53) The sort of factors that might be taken into account would include the expense of adducing the evidence by alternative procedures, (54) the seriousness of the case, and the importance of the information in the statement. Another factor to be considered is whether it would be reasonably practicable to secure the evidence for trial at a later date, if that possibility is raised by either party. (55) On consultation, the vast majority of respondents who dealt with the point agreed with the test of reasonable practicability. 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. (56) (Recommendation 12)
Disappearance
8.40 Under section 23(2)(c) of the 1988 Act, a statement made by a person in a document is prima facie admissible if all reasonable steps have been taken to find the person but he or she cannot be found. Our provisional view was that the same approach should be adopted for the purpose of our unavailability exception, and we proposed that a statement should be automatically admissible if the declarant cannot be found.
8.41 On consultation, a large majority of those who responded on this point favoured our approach. David Ormerod, (57) however, argued that our proposal
raises difficulties in conjunction with the safeguard against a party adducing evidence when that party is responsible for the absence of the declarant. If the missing witness cannot be traced, how are we to know why he is absent, let alone whether a particular party had something to do with the absence? The Commissions objective is commendable, but the formula is unworkable. (58)
8.42 Although we have had to rework our proposal that a party who is responsible for the unavailability of the declarant should not be able to rely on the declarants statement, (59) we do not agree that it renders the present proposal unworkable. (60) Our recommendation 9 is that, where it is alleged that the party adducing a statement is responsible for the unavailability of the declarant, the burden of proving that allegation should lie on the party making it. But this would apply only once it had been shown that the declarant was unavailable for one of the recognised reasons. If a party tenders a statement on the ground that all reasonable steps have been taken to find the declarant, but without success, that party must prove, to the appropriate standard of proof, that all reasonable steps have been taken. If it is suggested that, on the contrary, that party has taken steps to ensure that the declarant does not come to court, that party would have to disprove that suggestion in order to show that he or she had taken reasonable steps to produce the declarant. It is true that in this situation there may be no room for the operation of recommendation 9, but only because there is no need for it. This particular condition of admissibility is worded in such a way that recommendation 9 is unlikely to have any effect.
8.43 In the consultation paper, we invited views on whether the legislation should list the factors to be taken into account in deciding whether all reasonably practicable steps have been taken. (61) Only three respondents gave a view. We are persuaded that it would be unrealistic to list the factors relevant to reasonable practicability, and we do not recommend that this should be done. 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. (62) (Recommendation 13)
. (63)(64)
Statements taken pursuant to letters of request
8.46 The Serious Fraud Office proposed another category of evidence as an automatic exception to the hearsay rule, namely, where the evidence of the declarant was taken pursuant to a letter of request issued under section 3 of the Criminal Justice (International Co-operation) Act 1990. (66) Under this provision a judge, sheriff or magistrate can issue a letter of request for assistance in obtaining evidence outside the United Kingdom. Where such evidence is obtained, section 25 of the 1988 Act gives the court a discretion whether to admit it, and requires the court to have regard not only to the general matters set out in that section but also to
(1) whether it was possible to challenge the statement by questioning the person who made it; and
(2) (if proceedings had been instituted) whether the local law allowed the parties to the proceedings to be legally represented when the evidence was being taken. (67)
8.47 The position would change radically if our recommendations for categories of automatic admissibility were implemented, as many of the problems arising in respect of evidence taken under the 1990 Act would then disappear. The statement or evidence of a person who has complied with a letter of request would be automatically admissible if that person is dead, is too ill to attend court, is outside the United Kingdom and cannot reasonably be brought to court, or cannot be found despite reasonable steps being taken to find him or her. It would also be admissible, subject to the leave of the court, if that person does not attend through fear. (68) We are not aware of any difficulties in adducing evidence under the 1990 Act which would survive the implementation of these recommendations. Accordingly, we make no recommendation for a specific category of admissibility for statements obtained under letters of request.
FEAR
8.48 We were repeatedly told that a major problem in the administration of criminal justice today is that many witnesses are too frightened to give evidence. (69) As a result of this difficulty, prosecutions cannot be brought, or have to be aborted, because central evidence cannot be adduced. Proving that intimidation has taken place can be extremely difficult, as the consequence of successful intimidation is often that the witness disappears without any clear reason. The problem is not limited to prosecution witnesses: defendants sometimes have great difficulty in ensuring that their witnesses attend at court, because the witnesses are fearful of antagonising the police or others involved or interested in the prosecution. (70)
The present law
8.49 Under section 23(3) of the 1988 Act, a statement contained in a document is admissible (with the leave of the court) (71) if it was made to a police officer, or some other person charged with the duty of investigating offences or charging offenders, by a person who "does not give evidence through fear or because he is kept out of the way". As Blackstone points out, (72) these provisions raise "difficult questions of interpretation".
8.50 One problem with the present law is that it is uncertain whether it is limited to fear of injury by the person against whom the proceedings are being taken, or that persons associates (for example, the informer who fears reprisals from a gang); or whether it extends to fear of (for example) injury to another, or of financial loss, or of being publicly identified by the media in connection with some other matter; or whether it includes the witness who is too traumatised by the offence itself to be able to face the ordeal of appearing in court. It would certainly cover the first kind of fear because, as Watkins LJ explained:
It will be sufficient that the court on the evidence is sure that the witness is in fear as a consequence of the commission of the material offence or of something said or done subsequently in relation to that offence and the possibility of the witness testifying as to it. (73)
It is also clear that it is not necessary to prove a connection between the offence and the fear, (74) but it is undecided whether the section covers a more general fear of going to court.
8.51 The Royal Commission was troubled about witnesses who "may find the publicity, or threat of it, surrounding their appearance in the witness box a powerful disincentive to giving evidence". (75) After suggesting that witnesses do not have to disclose their addresses, the Commission went on to point out:
We also believe that greater use could be made of section 23 of the Criminal Justice Act 1988. This section allows the court to give leave for the statement of a witness to be read out where the witness is afraid to give oral evidence. Section 26 provides that the court should not give leave unless it is in the interests of justice to admit the statement. It is rare for section 23 to be used where the intimidated witness is the main witness, as the defendant would not be able to cross-examine. We would, however, like to see more use made of the section for other witnesses. One difficulty is that the CPS have no way of knowing in advance whether the statement will be admitted or not. We therefore suggest that this is one of the matters which ought to be resolved prior to trial in accordance with the procedures which we have proposed in chapter seven. (76)
8.52 It has been held that the statutory words "does not give oral evidence through fear" include not only a witness who fails to attend, but also one who comes to court but refuses to be sworn, as well as one who takes the oath but, through fear, is unable to complete his or her evidence. (77) Until recently it was thought that a witness cannot be said to have failed to give evidence where he or she has given evidence "of significant relevance", but only where "in no real sense did the evidence placed before the court go to decide the issues of fact in the case". (78) However, this view has recently been rejected by the Court of Appeal. (79)
8.53 Yet another complication is that if a witness is frightened and refuses to give evidence, or refuses to testify while in the witness box, section 23 will apparently cover the situation; but a witness who is intimidated into telling a false story will be deemed hostile. (80) A hostile witness is one who does not appear to want to tell the truth. (81) A previous statement inconsistent with the testimony given from the witness box may be put to a hostile witness and proved, but it will go only to the witnesss credit, and will not be evidence of its truth. By contrast, where a statement is admitted under section 23 of the 1988 Act, it will be evidence of its truth. Thus, whether or not fact-finders are allowed to have regard to the contents of the previous statement on the issue of guilt may depend on how the individual reacts to intimidation. (82) Our provisional view was that this is not satisfactory. (83)
8.54 Finally, the exception applies only to statements made to the police or others charged with the duty of investigating offences or charging offenders. This presents problems for defendants whose witnesses are frightened, because they are unlikely to have made statements to a police officer which could be admitted under section 23(3).
8.55 We regard each of these criticisms as being cogent. The uncertainty under the present law must discourage judges and magistrates from permitting the evidence of frightened witnesses to be adduced, and parties from seeking to adduce it. Bearing in mind the magnitude and significance of the problem of frightened witnesses, we believe that changes are called for.
8.56 In the consultation paper we expressed the provisional view that it was the fact that the person cannot be found (or does not attend after reasonable steps have been taken to secure his or her attendance) that should determine whether his or her evidence is admissible, rather than the reason for his or her non-appearance. (84) We did not therefore propose any separate exception for a witness who was in fear.
Should there be a specific exception for the statements of witnesses who are afraid to testify?
8.57 On consultation, we were repeatedly told that we should ensure that the courts were not deprived of the evidence of genuinely frightened witnesses, and that there should be a specific category for it. At the time of the consultation paper we had thought that the exceptions we proposed would cover all situations. If the witness could not be found, then the evidence would be automatically admissible; if the witness could be traced but did not want to testify, a summons or subpoena could be obtained, and, if those were ineffective, a warrant could be executed. In the light of the responses we now take the view that this would not be a practical solution, and that there should be an exception for witnesses who, through fear, do not give oral evidence.
Should the exception be automatic?
8.58 Our starting point is to favour automatic admissibility for all first-hand hearsay where the declarant is identifiable but unavailable; but the issue of frightened witnesses is unique. Unlike death or illness, fear is a state of mind, and it can be difficult to tell whether a witness is genuinely frightened or merely reluctant. We were repeatedly told, especially at Judicial Studies Board seminars attended by the Commissioner with special responsibility for criminal law, (85) that there is a very genuine risk that, if the statements of frightened witnesses were automatically admissible, prospective witnesses could give statements to the police in the knowledge that they could at a later stage falsely claim to be frightened, with the result that they could avoid having to go to court and be cross-examined. The general thrust of these responses was therefore that it would be undesirable to have an automatic exception to the hearsay rule for frightened witnesses. We agree, and believe that the leave of the court should continue to be required.
The exercise of the courts discretion
8.59 In view of this conclusion, we must consider how the court should decide whether to give leave. We believe that a statement should readily be admitted where the witness is in fear, provided that the interests of justice do not dictate otherwise. In deciding whether the admission of such a statement is in the interests of justice, the court should have regard to what was said in the statement; to any risk of unfairness, whether to the defendant, to a co-defendant or to the prosecution; where appropriate, to the fact that the evidence could be received otherwise than from the witness in person in the courtroom; (86) and to any other relevant circumstances.
8.60 Any part played by a party to the proceedings in intimidating the witness would obviously be a factor taken into account by the court in the exercise of its discretion. If, for example, a prosecution witness has been intimidated by the accused, or persons acting on behalf of the accused, it is likely that the statement would be admitted. Conversely, if the witnesss fear has no connection with the accused, it may not be fair to allow the statement to be admitted without the accused having a chance to cross-examine.
8.61 If it transpires that it is the party seeking to adduce the statement that has intimidated the witness, the question of discretion may not arise at all. This is because we have recommended that a party who deliberately ensures that a witness is not available to testify should not be able to rely on that witnesss statement. (87) Similarly, if the party seeking to adduce the statement of a frightened witness were shown (88) to have caused the witnesss fear in order to deter him or her from giving evidence, the exception for frightened witnesses would not apply.
8.62 Different people fear different things; and our view is that a court should look at matters through the eyes of the witness, bearing in mind his or her personal weaknesses, and assess whether that witnesss failure to testify is reasonable in all the circumstances. (89) The characteristics and circumstances of the witness clearly fall within the phrase "other relevant circumstances".
What kind of fear should suffice?
8.63 Section 23(3) does not specify exactly what the witness must be afraid of: it is left to the courts to determine whether fear of (for example) injury to another, or of financial loss, justifies the admission of the statement. We considered recommending that the circumstances in which fear justifies the reception of the statement should be set out in the legislation; but we concluded that it would probably be undesirable to do this, for two reasons. First, if the rules are too precise it makes it easier for those who seek to intimidate witnesses to work out how to do so without the statement being admitted. Secondly, we do not believe that it is possible to cover all the circumstances that may arise. The view that was implicit in the responses received on consultation, and that of those attending the February seminar and the two Judicial Studies Board seminars attended by one of our Commissioners, was that this branch of the law does not permit rigid categorisation of the circumstances in which a prospective witness should be able to avoid giving evidence because of fear.
8.64 By the same token, however, we do not believe that it is enough for the legislation simply to refer to "fear" without even a partial definition. This is because, in the absence of any definition, it must be open to a court to hold that a particular kind of fear (for example, fear of injury to another, or of financial loss) is not what Parliament meant by "fear", and that the discretion to admit the statement is therefore not available. We believe it should be made clear that the discretion is a wide one. Indeed, we find it hard to envisage a situation where a court would be minded to admit the statement if it had the power to do so, but where it ought to be precluded from doing so because the particular kind of fear from which the witness was suffering was not the kind that ought to suffice.
8.65 The draft Bill therefore provides that, for the purposes of the exception for persons who do not give evidence through fear, "fear" must be widely construed. (90) For example, it is expressly provided that fear of the death or injury of another, or of financial loss, will suffice.
8.66 Conversely, the draft Bill does not provide that any particular kind of fear will not suffice. We considered the possibility of a provision to the effect that the fear of prosecution for perjury is not enough. The exception for a witness who is "in fear" is designed to facilitate the reception of evidence from intimidated witnesses and from those who are just scared of the process of giving evidence; it would be quite wrong for it to be used where the witness was only afraid of being prosecuted. But we decided that it was unnecessary to make express provision for this situation, since no court would think it "in the interests of justice" to allow a witnesss statement to be read on this basis.
Statements not made to the police
8.67 Under the present law, the statement of a frightened witness can be adduced only if "the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders". (91) We do not see why the fact that the statement was not made to a police officer should necessarily make it inadmissible. This condition can have the effect of putting the defence at a disadvantage, and we believe that it is unnecessary.
Witnesses who begin to testify but are afraid to continue
8.68 Despite the recent decision referred to at paragraph 8.52 above, it is still not entirely clear whether a witness who has given a substantial part of his or her evidence before becoming frightened can be said to have failed to give oral evidence. If not, it seems that a previous statement by the witness does not become admissible merely because he or she becomes too afraid to continue. We see no reason why the exception should not apply irrespective of how much evidence the witness has already given; and this view was widely supported on consultation.
8.69 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.
(92) Recommendation 14)
8.70We believe that the regime we recommend would in several ways make it easier to adduce the evidence of frightened witnesses. First, it makes it clear that "fear" is to be widely construed, and so the courts might be more sympathetic in assessing whether a witness is genuinely frightened. Second, it would make it clear beyond doubt that the exception extends not only to those who, through fear, do not come to court at all, but also to those who become fearful in the course of their evidence. Third, it would remove the restriction that a statement must have been made to a police officer in order to be admissible. Finally, it would remove the anomaly that, if the witness turns hostile through fear, the previous statement cannot be evidence of its contents. (93)
BUSINESS DOCUMENTS
8.71 We have already referred (94) to the provisions of section 24 of the 1988 Act, (95) which permit the admission on a discretionary basis of "business etc documents". There has been much enthusiasm for these powers, and it was not suggested to us that they should be cut down. We recommend that there should continue to be an exception for statements contained in business documents. (96)(Recommendation 15)
Automatic admissibility
8.72 A critical feature of section 24 is that the court retains a discretion whether to admit evidence falling within the ambit of the section. In the consultation paper we considered the advantages and disadvantages of judicial discretion (97) and concluded that it would be preferable to have categories of automatic admissibility with very limited scope for the exercise of discretion. (98) More specifically, we provisionally proposed that the discretionary provisions in sections 25 and 26 of the 1988 Act should be repealed when section 24 was re-enacted. (99)
8.73 In reaching that provisional conclusion we were very much influenced by the greater certainty that would follow from this approach. Considerable savings would result in court time currently spent in legal argument. We pointed out that the court would still retain a discretion to exclude prosecution evidence, either at common law (on the ground that its prejudicial effect exceeds its probative value) or by statute. (100) All the respondents who addressed this conclusion agreed with it, and we did not receive any cogent arguments that injustice would result.
A restriction on automatic admissibility
8.74 However, it became clear to us that, although business documents can be assumed in the main to be reliable, this assumption may not be true for each and every document; and, where it is apparent that a particular document is not or may not be reliable, it would be undesirable for it to be automatically admissible as a business document. For example, a letter would qualify as a business document as soon as it was posted, but there may be reason in the particular case to suspect that the contents are not to be relied upon. Or consider the case where a neighbour tells a social worker that she heard the couple next door beating their children on the previous night. The social worker makes a note in the official file. That note is a business document and automatically admissible; but if there were a provision along the suggested lines, the court could take into account information which led it to suspect that the account was at least exaggerated, and direct that it was not a business document.
8.75 Thus, where a statement is tendered in evidence and the court has cause to doubt its reliability, the court needs to be given an additional power to direct that the statement shall not be admissible as a business document. The court would take into account the purpose for which the statement is tendered, (101) the contents of the statement, the source of the information, and the way in which or the circumstances in which the information was supplied or received or the document was created or received. Where there is no particular reason to doubt the reliability of the statement, this power would not be available.
8.76 The party opposing the admission of the evidence would make a representation to the court, based on facts to which it could point, but without having to call evidence, and invite the court to consider whether a direction should be given that the document in question is not to be admitted as a business document. If it were necessary for the party tendering the document to call evidence to prove that the document was reliable, a voir dire would be held, in the same way as if that party had to call evidence to prove that the document was received in the course of a business.
8.77 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. (102)(Recommendation 16)
The wording of the exception
8.78 Where the document was not prepared with an eye to criminal proceedings (103) it is admissible under section 24, and subject only to the discretion and leave requirements of sections 25 and 26. If it was prepared with criminal proceedings in mind, however, section 24(4) provides that it is admissible only if the maker of the statement is unavailable, (104) does not give oral evidence through fear or because he or she has been kept out of the way, (105) or "cannot reasonably be expected (having regard to the time which has elapsed since he made the statement and to all the circumstances) to have any recollection of the matters dealt with in the statement". (106)
8.79 As we pointed out in the consultation paper, (107) the present wording of section 24(1)(ii) means that when one person supplies the information and another records it, the "maker of the statement" the one who (where the statement was prepared for the purpose of criminal proceedings or a criminal investigation) must be unavailable or unable to remember has been defined as the person who did the recording, not the person who supplied the information. (108) Thus, where an employee of a credit card company records a report of a lost or stolen card, the maker of the statement is the employee, not the card-owner who reports the loss. (109)
8.80 It follows that, where an oral statement is made by one person to another, who records it in the course of business for the purpose of criminal proceedings or a criminal investigation, the record is admissible if the person recording it cannot remember the matters stated even if the person who made the oral statement can. Thus in Field (110) the Court of Appeal held that the section enabled the court to receive evidence of a statement which a police officer had taken from a young child, as the "maker" was the officer, not the child. The court thought the point was difficult, but held that the officer
was making a statement which represented her recollection of her conversation with the child. It follows that for the purposes of the section she is the maker of the statement.
It was therefore the officers recollection that mattered, not the childs.
8.81 This appears to be a drafting oversight and cannot have been the intention of Parliament. The basis of section 24 is that persons who record information in the course of a trade, business, profession or other occupation can normally be assumed to have recorded that information accurately; the cross-examination of such persons is unlikely to be particularly helpful because all they will say, if they can recall the incident at all, is that they recorded what they were told. In contrast to this, the supplier of the information here is a person of particular importance, as the fact-finders would normally have to gauge the accuracy of his or her evidence (for example, by how well he or she stood up to cross-examination).
8.82 We therefore conclude that the person who (where the statement was prepared for the purpose of criminal proceedings or a criminal investigation) must be unavailable, or unable to remember the matters stated, should be the supplier of the information. We are fortified in that conclusion by reference to section 68 of PACE, which adopted a similar approach.
8.83 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. (111) (Recommendation 17)
CONFESSIONS, MIXED STATEMENTS AND DENIALS
8.84 The defendants confession was an ancient exception to the hearsay rule. It was amended and codified by section 76(1) of PACE, which provides:
In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
8.85 A confession which is prima facie admissible under section 76(1) may be inadmissible as a result of section 76(2), or the common law discretion, or the discretion to exclude evidence adduced by the prosecution pursuant to section 78(1). (112)
8.86 In theory, the only out-of-court statements by a defendant that are admissible as evidence of the truth of their contents are those that incriminate the defendant making them. (113) Purely "self-serving statements", such as denials in the police station, are not admissible as evidence of innocence. In the case of a "mixed statement" (one which is partly incriminating and partly self-serving), the whole statement is regarded as evidence in the case, but the incriminating parts may carry more weight than the self-serving parts, and a judge is entitled to point this out. (114)
8.87 A mixed statement has recently been defined as one which contains not only denials but also "an admission of facts which are significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt". (115) It is not every insignificant admission of fact, however, that turns an exculpatory statement into a mixed one. The court went on to say that admissions merely of what was obvious, admissions which the appellant could hardly fail to make, and admissions made in the course of what is essentially an exculpatory statement do not have this effect.
8.88 In practice, the court is almost always told what the defendant said on arrest and on being charged, even if it was "purely self-serving", in which case it will be evidence of the reaction of the accused when first taxed with the incriminating facts. (116)
8.89 A related common law rule is that the accuseds response on discovery of incriminating articles in his or her possession is admissible, if he or she testifies to the same effect, as evidence of consistency. It has been suggested that this is on the principle that the accused may give a plausible explanation as to why the goods are in his or her possession, which it would be unfair to exclude. (117)
Our provisional proposal and the response on consultation
8.90 In the consultation paper we proposed that confessions should continue to be admissible against their makers, subject to section 76 of PACE and the discretions at common law and under section 78(1) of PACE to exclude prosecution evidence. All the responses to this proposal were in favour of it. (118)
8.91 In Part XIII of the consultation paper, which dealt with previous statements by testifying witnesses, we proposed, in line with the CLRC position, that a testifying defendants previous statement on accusation should be admissible as evidence of its truth, save for prepared self-serving statements. (119) (We rather misleadingly described this as "preserving the present position". In fact, the difference from the present position would be that under our proposal the fact-finders could consider the out-of-court account as evidence on the issues, and not merely as "evidence of reaction".) We note that Cross and Tapper recommends the abolition of this exception to the rule against previous consistent statements. (120) The CLRC proposed making all out-of-court statements by testifying witnesses admissible. (121)
8.92 Our proposal was supported by a large majority of those who commented. Those who did not support it were either concerned about the position of a co-accused, or objected generally to the idea of a statement being admitted as evidence of the truth of its contents. Even those in favour of our proposal were, however, unable to point to defects in the current practice. On further reflection, we experienced considerable difficulties in devising an alternative scheme which works fairly and sensibly and covers both the case where the defendant testifies and the case where he or she does not. We recommend that the current law be preserved in respect of admissions, confessions, mixed statements, and evidence of reaction. (122) (Recommendation 18)
Confessions and co-defendants
8.93 At the time of publication of the consultation paper, the authorities were in conflict on the admissibility of the confession of an accused at the behest of a co-accused. (123) The Court of Appeal has since held that,where there is an issue as between two accused as to whether a crime was committed by one or the other or by both, an admission by one defendant may be adduced by the other even where that admission could not be adduced on behalf of the prosecution, provided it was voluntary. (124)
8.94 In the case of a confession which the prosecution seeks to adduce, section 76(2) of PACE applies, so that, if the defence makes representations that the confession was obtained by oppression or in consequence of anything which was likely to make it unreliable, the prosecution must prove beyond reasonable doubt that it was not so obtained. In the case of a confession which a co-accused seeks to put in evidence, the common law principle that a confession must be voluntary to be admissible applies.
8.95 Given that we are recommending the codification of the hearsay rule, it seems to us that the best way to ensure the harmonious development of the law on the admissibility of confessions, at the instance of the prosecution and at that of a co-accused, is to adapt the principle of section 76(2) to the case where one defendant seeks to adduce the confession of another. The only difference would be in the applicable standard of proof: the prosecution has to satisfy section 76(2) to the criminal standard of proof, but a co-accused would have to satisfy the analogous requirement only on the balance of probabilities. 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. (125)(Recommendation 19)
8.96 Where a confession is admitted against one accused on behalf of a co-accused, the fact-finders may consider the admission as exonerating the defendant who did not make it, but may not take it as evidence against the defendant who made it. A hearsay admission is still evidence only against the person who made it, and a jury must be warned accordingly. (126) A number of our respondents thought it extremely important that this principle be retained, and we agree.
Confessions and third parties
8.97 A confession by someone who is not a defendant in the proceedings is inadmissible hearsay, following Blastland. (127) There is a further complication in the case of third party confessions because, as we noted in the consultation paper, "as long as Blastland is authority that third party admissions are irrelevant unless the inescapable conclusion is that only the third party could have committed the crime, no relaxation of the hearsay rule [will] enable a court to hear a third party admission". (128) In the consultation paper we referred to criticism of this aspect of Blastland by Professor Birch, (129) and added that, in our view, the fact that someone else has confessed to the offence is logically relevant, and that this is so whether that other person is charged in the same proceedings or not.
8.98 Relevance is a matter of fact, and it is for the courts to decide whether a confession is relevant in any individual case. What we are concerned about is the exclusion of confessions which are relevant. What should not arise is the situation where, because it is known that someone else has confessed, it is feared that a conviction is unsafe, but evidence of that confession could not be admitted at the trial. (130)
8.99 Under our proposals, a relevant third party confession could be admitted if the confessor has died, is too ill to attend court, cannot be found or is outside the United Kingdom: such statements would be automatically admissible to the extent that oral evidence by that person would be admissible. Where the confessor is too frightened to testify, the confession could be admitted with the leave of the court. In other cases for example, where the confessors whereabouts are known but he or she disobeys a witness order, or the confessor testifies but refuses to answer questions which may incriminate him or her the confession will still be unavailable to the court. In such cases, the defence would have to fall back on the safety-valve (131) in order to have evidence of the confession admitted.
OTHER STATUTORY EXCEPTIONS
8.100 In the consultation paper, our provisional view was that certain statutory provisions dealing specifically with hearsay should be retained. (132) Those provisions were section 9 of the Criminal Justice Act 1967, (133) sections 3 and 4 of the Bankers Books Evidence Act 1879, (134) section 46(1) of the Criminal Justice Act 1972 (which is a provision equivalent to section 9 of the Criminal Justice Act 1967 for written statements made in Scotland or Northern Ireland and some statements made outside the United Kingdom), and paragraphs 1 and 1A of Schedule 2 to the Criminal Appeal Act 1968, which provide for the admissibility of a transcript of evidence given at an earlier trial where the retrial is ordered by the Court of Appeal. (135) The draft Bill appended to this report allows for the continuation of these statutory provisions (but amends the Criminal Appeal Act 1968, Schedule 2, paragraph 1). (165)
8.101 There are also other, rarely-used, statutory provisions which permit hearsay evidence to be adduced, many of them created before 1988, (137) on which we did not express a view in the consultation paper. We have considered what should happen to these provisions in the light of our general policy that the new Bill should be as comprehensive as possible, whilst at the same time not containing any provisions which are no longer needed in light of our reforms. We have decided not to recommend the repeal of any of these provisions, because it has not been suggested to us that they cause any difficulties and it is impossible to be sure that their repeal would not cause difficulties for prosecutors.
8.102 On consultation the proposals regarding section 9 of the Criminal Justice Act 1967 and section 46(1) of the Criminal Justice Act 1972 were accepted. We now turn to consider the exception for bankers books, and then that for transcripts of evidence at retrials.
Bankers Books Evidence Act 1879, sections 3 and 4
8.103 Our proposal to retain these provisions was accepted by almost all consultees who addressed the point. Professor Sir John Smith commented that sections 3 and 4 of the Bankers Books Evidence Act 1879 do not deal with the original entries in bankers books, and suggested that this statute could be amended. We believe that the originals would be covered by clause 4 of our draft Bill, and copies can continue to be covered by the 1879 Act, and that it is not necessary to amend the 1879 Act. (138)
8.104 We also considered whether we should include a provision making it clear that computer printouts are admissible in evidence. Although the 1879 Act makes "a copy" admissible, this term is not defined in that Act. However, a court construing those words today would have regard to the fact that the definition of "bankers books" has been amended (139) so that it now covers records kept on "magnetic tape" or any form of "electronic data retrievable mechanism". We therefore believe that computer printouts would be regarded by the courts as "copies" of such records. We are encouraged in this view because it is only in this form (or on a screen) that entries stored in a computer will be legible, and thus of use to the court.
Evidence given at an earlier trial
8.105 There is a rule at common law which allows for the admission of a transcript of the evidence of a witness who testified at the original trial where the witness is unavailable at the retrial. (140) In the case of retrials ordered by the Court of Appeal, paragraph 1 of Schedule 2 to the Criminal Appeal Act 1968 applies. (141) A transcript has also recently been held to be admissible under sections 23 or 24 of the 1988 Act. (142)
8.106 Under our recommended regime, if there is a retrial, evidence given at the original trial would be a "statement" which would be admissible by virtue of clause 3 of the draft Bill where the witness was unavailable to testify at the retrial. This would conflict with the existing statutory and common law rules. In particular, evidence admitted pursuant to paragraph 1 of Schedule 2 to the 1968 Act is admissible only by leave of the court. If the 1968 Act is left as it currently stands, then both that Act (which requires the courts leave) and the new automatic exception (which does not) could apply to a transcript. Evidence given at a trial is as much a statement as any other kind of statement, and it seems to us that the circumstances in which it becomes admissible should be the same, whatever the reason for the retrial.
8.107 We were concerned about whether a party should be compelled to put in a transcript of the earlier proceedings (which would include cross-examination) rather than a witness statement. We do not believe that it is a matter of great importance because if the party sought to put in the statement (as opposed to the transcript of evidence), the opposing party would be able to adduce the part of the transcript containing the cross-examination (or indeed the evidence in chief) under clause 3 or clause 13 of the draft Bill. We therefore 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. (143)(Recommendation 20)
The Criminal Procedure and Investigations Act 1996
8.108 The changes which this Act has made to the law of hearsay are detailed in Part II above. The effect of paragraphs 1 and 2 of Schedule 2 to the Act (144) is to make statements and depositions admitted at committal proceedings admissible at trial in the Crown Court, subject to the right of the opposing party (invariably the defence) to object; but paragraphs 1(4) and 2(4) provide that an objection may be overridden if the judge thinks it would be in the interests of justice so to order.
8.109 In other words, the Schedule creates new exceptions to the hearsay rule which are reliant on judicial discretion, and which may apply where the maker of the statement has never been cross-examined and is not unavailable to give oral evidence. It will be clear from Part III, where we discuss the justifications of the hearsay rule, that in our view cross-examination of the witness at trial should be dispensed with only where it is necessary to do so (because the witness is unavailable). It will also be clear from our discussion of the effect of the Convention that to admit a hearsay statement against the accused, when the declarant could have been called, may contravene Article 6(1) and Article 6(3)(d). (145)
8.110 Further, we perceive grave disadvantages in making a rule of admissibility wholly dependent on the exercise of judicial discretion. (146) These disadvantages are exacerbated in the case of paragraphs 1(4) and 2(4) because the discretions set out are wholly unstructured and unguided. The Minister of State for the Home Office said in debate in the House of Lords that the Government anticipated that the discretions would be exercised in the same way as the discretions under the Criminal Justice Acts 1925 and 1988, (147) but there is nothing in the Act to say so.
8.111 Lastly, the Schedule creates a significant disparity between trials in the Crown Court and in magistrates courts: in the Crown Court the defence will have to rely on the judges discretion, arguing that it is not in the interests of justice for a statement to be admitted, whereas in a summary trial the same statement would not be prima facie admissible in the first place.
8.112 The Minister also said that the Government was not seeking to introduce anything new or revolutionary, and it appears that the aim was to simplify committal proceedings, and then to allow any statements admitted at committal, the contents of which were not disputed by the other parties, to be admitted at trial without the witness having to be called.
8.113 The consultation paper was published before the 1996 Act was introduced, and so we did not consult on the question of whether paragraphs 1(4) and 2(4) of Schedule 2 should be retained or repealed, but, in the light of the responses received to our provisional views on judicial discretion, (148) we believe that consultees would agree that these paragraphs should be repealed. We recommend the repeal of paragraphs 1(4) and 2(4) of Schedule 2 to the Criminal Procedure and Investigations Act 1996. (149) (Recommendation 21)
EXISTING COMMON LAW EXCEPTIONS
Res gestae
8.114 We now turn to consider whether we should retain the common law exception for res gestae. (150) This exception has four separate strands to it, each with its own precondition for admissibility and individual justifications for its existence. (151) They may be conveniently dealt with under the following heads.
Spontaneous statements made by way of reaction to a relevant act or event
8.115 Although there was some early doubt about this exception, (152) it is now clearly accepted that "spontaneous exclamations appear to represent the most important application of the res gestae principle". (153) The present test, however, is not whether the words were said when the offence was actually taking place, but whether the person who made the statement was then so emotionally overpowered by the event that he or she is almost certain to have been telling the truth as he or she perceived it. (154) Despite the frequent references in cases on res gestae to the evidence of the victim, (155) it seems to be clear that any persons evidence may be res gestae, including any witness (156) and the accused. (157)
8.116 The primary test for admissibility as part of the res gestae is now "can the possibility of concoction or distortion be disregarded?" (158) Thus the less dramatic the event and the longer the interval before the statement was made, the less likely it is that the res gestae exception will be applied. It was held not to apply to remarks made 20 minutes after a not particularly dramatic traffic accident. The event which had occurred was not so unusual or dramatic as to have dominated the thoughts of the victim 20 minutes after it took place. (159)
8.117 There is a five stage test for the admission of such evidence:
(1) Can the possibility of concoction or distortion be disregarded?
(2) To answer this, ask if the event was so unusual, startling or dramatic that it dominated the thoughts of the victim causing an instinctive reaction without the chance for reasoned reflection, in conditions of approximate, but not necessarily exact, contemporaneity.
(3) To be sufficiently spontaneous the statement must be closely connected with the event causing it.
(4) There must be no special features making concoction or distortion likely.
(5) There must be no special features likely to result in error, for example, drunkenness. (160)
8.118 At one time it may have been thought that "the event" in question must be the crime, (161) but this is not so in Lord Ackners five-stage test. (162) We do not see why a statement made in response to some exciting event after the commission of the crime might not provide an equal guarantee of reliability for example where a bystander says, as the police chase the defendant after the crime, "Be careful, hes got a gun," and the issue at the trial is whether the defendant was armed.
8.119 We were concerned about the admission of res gestae evidence because very frequently the identity of the maker of the res gestae statement is not known. That means that the party against whom the statement is adduced cannot discredit that person. It may be possible to show that the declarant had a poor view, or was intoxicated, but other evidence discrediting the declarant may not be forthcoming. We were very troubled by this, but on consultation we were repeatedly reassured that nobody was aware of miscarriages of justice caused by the admission of res gestae, which in itself has a precondition for admissibility that the possibility of concoction or distortion can be disregarded. (163) If there is no possibility of concoction or distortion but only of mistake, the lack of any opportunity to discredit the declarant personally is of comparatively little consequence. (164)
8.120 In the consultation paper we referred to views which suggest that a response to an exciting event may be misleading, not because of concoction or distortion, but because the witness had only partial knowledge. (165) We recognise that this may occur, but still take the view that statements made in the heat of the moment should be admissible. To return to the example of the bystander who thinks that the defendant has a gun: the bystander could well be mistaken, but the statement is clearly relevant and it would seem odd not to let the fact-finders hear of it. The risk of a mistake would no doubt be stressed in counsels closing speech, and referred to by the judge in the summing up.
8.121 Our fears have therefore been allayed. 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. (228) (Recommendation 22)
Statements accompanying and explaining relevant acts
8.122 This form of statement may properly be regarded as an intrinsic part of the relevant act so long as there is an essential connection between the two; exclusion of such statements would have the effect of unfairly distorting the overall picture and possibly resulting in false inferences being drawn from the act. (167)
8.123 The act which the statement accompanies and explains must itself be "relevant". What we are looking for is an act which may have some relevance taken alone, such as handing over money, but which can be truly evaluated only if words accompanying it are admitted. (168) Conversely, the act of dialling a number on a telephone is unlikely to be relevant in itself. Thus in Kearley (169) the prosecution had sought to prove that the appellant was a drug-dealer by producing evidence of telephone calls and visits to his home after his arrest from people seeking to buy drugs from him; some of them asked for their "usual supply," thereby implicitly asserting that they had purchased drugs from him in the past. As Lord Bridge said, (170) the argument that this res gestae exception was applicable to the telephone calls could not succeed because the act of dialling was not relevant in itself only the words used made it relevant. The evidence was ultimately ruled inadmissible on grounds of relevancy. (171)
8.124 We believe that there might be occasions when this exception is justified, and we are not aware of any injustice being caused by it. On balance we think it worth retaining. 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. (172) (Recommendation 23)
Statements describing states of mind
8.125 Statements concerning the declarants state of mind are admitted at common law chiefly on the basis of necessity: what a person feels or intends or wants is so much a matter within that persons own knowledge that, in the absence of evidence from him or her, it would be impossible to prove the matter in any other way. It is also fair to say that, in the absence of a motive to misrepresent, it is the sort of statement that is more likely to be true than false. The statement must of course be relevant to an issue in the case. (173)
8.126 This exception has contemporary significance because it is often the only way in which a party can prove that a witness is too frightened to attend court for example, by calling a police officer to say that the witness said that he or she was afraid. 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). (174) (Recommendation 24)
Statements describing physical sensations
8.127 As a further exception to the hearsay rule, evidence of what a person said may be given to prove the physical sensations experienced by that person, if they are in dispute or are relevant to a matter in dispute: for example, that the person was in pain (175) or was hungry. (176) The rationale for this exception is that such evidence will be the best (and usually the only) way of proving the fact in question.
8.128 It is usually said that this exception permits evidence of what a person said his or her feelings were, but not of their cause.
If a man says to his surgeon, "I have a pain in the head" that is evidence; but, if he says to his surgeon, "I have a wound"; and was to add, "I met John Thomas, who had a sword, and ran me through the body with it," that would be no evidence against John Thomas. (177)
In the case of Gilbey, (178) Lord Cozens-Hardy MR held that although contemporaneous assertions made concerning physical sensations were admissible, statements made attesting to the cause of those sensations were not. (179)
8.129 We believe that this exception serves a useful purpose and succeeds in giving part of the overall picture. (180) 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. (181) (Recommendation 25)
The common enterprise exception
8.130 Acts done or declarations made in furtherance of a conspiracy are admissible at common law against all parties to the conspiracy, so long as the existence of the conspiracy is proved by some extrinsic evidence. (182) Where the acts or declarations are hearsay, this amounts to a hearsay exception. The exception is evolving: it may apply not only to those charged with conspiracy but to any defendants involved in a common enterprise, (183) and it may be sufficient that the statement was made in the course of the conspiracy, rather than in furtherance of it. (184)
8.131 The exception can be justified as a pragmatic one, as it might be hard to prove a conspiracy without it, and we would not seek to change the law about how a conspiracy may be proved; and so it is our view that the exception should be retained. 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. (185) (Recommendation 26)
Other common law exceptions
8.132 We recommend that the following common law exceptions be retained, because they fulfil useful functions and we are not aware that they cause any difficulties:
(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. (186)(Recommendation 27)
THE SAFETY-VALVE: AN INCLUSIONARY DISCRETION
8.133 An integral part of our preferred option (187) is a limited inclusionary discretion to admit hearsay which falls within no other exception. Its purpose would be to prevent potential injustice which could arise through the exclusion of hearsay evidence. We envisage that it would only be used exceptionally.
8.134 In the consultation paper we proposed that this discretion
(a) should extend to oral as well as documentary hearsay;
(b) should extend to multiple as well as first-hand hearsay; and
(c) should be available if (but only if) it appears to the court that
(i) the evidence is so positively and obviously trustworthy that the opportunity to test it by cross-examination can safely be dispensed with, and
(ii) the interests of justice require that it be admitted. (188)
8.135 We now examine, in the light of the responses on consultation, whether this discretion is desirable, and conclude that it is. (189) We then look at the terms of the discretion and suggest a revised wording for it. (190) We explain how we see it fitting with our other recommended reforms, and with the existing discretions at common law and under section 78(1) of PACE to exclude prosecution evidence, and give examples of how it might be used. (191) Finally, we consider whether it should be available to both the prosecution and the defence. (192)
Should there be a limited inclusionary discretion?
8.136 A very substantial majority of respondents were in favour of the existence of the safety-valve; three were in favour of it only for the defence; (193) and five were against it altogether. (194) Three respondents (195) pointed out that it was hard to reconcile our criticisms of judicial discretion with our proposal of the creation of a judicial discretion. We recognise that we are introducing the risks of inconsistency and unpredictability which accompany judicial discretion, but believe that without such a discretion the proposed reforms would be too rigid: some limited flexibility must be incorporated. As we have said, our purpose is to allow for the admission of reliable hearsay which could not otherwise be admitted, particularly to prevent a conviction which that evidence would render unsafe. We remain convinced that the safety-valve is needed. We recommend that there should be a limited discretion to admit hearsay evidence not falling within any other exception. (Recommendation 28)
What should its terms be?
8.137 Three respondents (196) did not agree that the safety-valve should extend to multiple hearsay and referred us to the reservations we had expressed about multiple hearsay. (197) We are still of the view that multiple hearsay (outside business documents) is generally less likely to be reliable than first-hand hearsay, but we do not think this must invariably be the case. This discretion should provide for the exceptional case where multiple hearsay is, unusually, of high probative value. The illustration given by Professor Glanville Williams which we cited in the consultation paper would be such a case. (198) We therefore consider that the safety-valve should extend to multiple hearsay.
8.138 Some respondents thought our proposed wording needed revision. As David Ormerod pointed out, (199) requirement (c)(i) was designed to provide a reliability test, and (c)(ii) a necessity test. Several respondents thought the test at (c)(i) was too high: some queried how it could ever be satisfied. It was also pointed out that it in effect required the judge to usurp the role of the jury: the Department of Trade and Industry added that the party allowed to adduce the evidence could then tell the jury that since the judge had found the evidence "positively and obviously trustworthy", they should accept it as true. It was also pointed out that there is some overlap between (c)(i) and (c)(ii), since "it cant be in the interests of justice if the evidence is not trustworthy or cross-examination cannot safely be dispensed with". (200)
8.139 We accept these criticisms, and take note of Lamer CJCs comment (of which David Ormerod reminded us) (201) that it is not essential that "reliability be established with absolute certainty", but it is sufficient if the possibility of untruthfulness and mistake are "substantially negate[d]". (202) What is required is not a test of actual reliability, as that would indeed lead to the judge usurping the jurys role. Rather, the judge or magistrates should ask whether the circumstances surrounding the making of the statement indicate that it could be treated as reliable. (203)
8.140 Some respondents suggested dispensing with (c)(i) and saying simply that the evidence should be admitted if the interests of justice require it. Our view is that on its own this phrase is too vague, and would doubtless lead to widely differing practices in different courts followed by a rush of appeals. We regard this as extremely undesirable, as one of our aims is to achieve as much certainty as is compatible with fairness.
8.141 We have given careful consideration to all the points made and alternative formulations proposed. We recommend that the inclusionary discretion
1(1) should extend to oral as well as documentary hearsay, and to multiple as well as first-hand hearsay; and
1(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. (Recommendation 29)
8.142 The phrase "probative value" is designed to encourage the court to consider, amongst other features, the degree of relevance of the statement, the circumstances in which it was made, the extent to which it appears to supply evidence which would not otherwise be available, and the creditworthiness of the declarant. In considering the interests of justice the court would take into account the reason the declarant cannot give oral evidence, the extent to which the accused can controvert the statement, and the risk of unfairness to the accused.
How it would work in practice
8.143 A party would only need to turn to the safety-valve where none of the other exceptions could be used. By definition, therefore, the declarant must be unavailable for some reason other than death, illness, fear, disappearance, or being outside the United Kingdom. The declarant need not have been competent at the time the statement was made. The declarant need not even be identified. We do not anticipate that there would be a large number of applications to admit evidence via the safety-valve. The Crown Prosecution Service was concerned that there would be a large number of unmeritorious applications, particularly in the magistrates courts. Our view is that all courts would regard the safety-valve as an exception to be used in very limited circumstances, and if it is too freely used, the Court of Appeal or Divisional Court will give guidance. (204)
8.144 Where possible, an application to have evidence admitted via the safety-valve would be made at the Plea and Directions Hearing or pre-trial review. As the Judge Advocate General pointed out, if the admissibility of an item of evidence has not been resolved pre-trial, a voir dire may be necessary for the judge or magistrates to decide on the admissibility of the evidence. We believe that voir dires are best avoided if possible because, apart from the time that they take and the interruption to the flow of the trial, the evidence given at a voir dire is frequently different from that given in the trial (if the evidence is admitted), as counsel and witnesses learn from the voir dire and adapt their questions and answers accordingly. Inevitably, however, in some cases it will only become apparent that an application under the safety-valve will be needed on the day of the trial itself. We return to this point below. (205)
8.145 In theory, both section 78(1) of PACE and the common law discretion to exclude prosecution evidence will apply. In practice, these discretions will add nothing, as they are both concerned with fairness to the accused, and it would be illogical for a judge to decide that it was in the interests of justice to admit evidence, but that to do so would have such an adverse effect on the fairness of the proceedings that that same evidence ought to be excluded. Similarly it is inconceivable that evidence which would otherwise have been admitted under the safety-valve might be excluded under our recommended discretion to exclude evidence which would result in undue waste of time. (206) If evidence is sufficiently reliable to justify invoking the safety-valve, it cannot be the kind of evidence that would result in undue waste of time.
8.146 Where the evidence was admitted, a judge would warn the jury about its weaknesses, as in the case of other hearsay evidence. (207) Any opposing party could adduce evidence to controvert the contents of the statement and to challenge the credibility of the declarant as if he or she had given oral evidence.
8.147 Here are three examples of cases where an application might be made under the safety-valve:
(1) D is prosecuted for indecent assault on a child. The child is too young to testify, but she initially described her assailant as "a coloured boy". The defence is identity and the defendant is white. (208)
(2) D is prosecuted for the murder of his girlfriend. He denies that it was he who killed her. Fixing the time of the murder is an essential part of proving that D must have done it. An eight-year-old child tells the police that she saw the victim leaving her home at a time after the prosecution says she was dead. By the time the case comes to trial, the child can remember nothing about when she saw the victim. (209)
(3) D is charged with assault. X, who is not charged, admits to a friend that he, X, committed the assault. D and X are similar in appearance. Xs confession is inadmissible hearsay unless the safety-valve is used. (210)
Should it be available to both the prosecution and the defence?
8.148 Three of the respondents (211) thought that the safety-valve should only be available to the defence. They pointed out that the inspiration for the creation of a safety-valve came primarily from the concern that wrongful convictions might occur if exculpatory evidence could not be admitted. (212) In addition, it is more important for the defence to be able to predict, as early as possible, what evidence will be admissible against the defendant, and uncertainty can be eliminated by restricting the safety-valve to defence evidence.
8.149 The vast majority of respondents agreed with our provisional view that the safety-valve should be available to both the prosecution and the defence. We believe that this is consistent with principle. (213) We do not think there is any danger of hearsay evidence of poor quality being admitted against a defendant, nor of a principle which exists to protect the defendant being undermined, (214) because the court will admit hearsay under the safety-valve only where it is in the interests of justice for it to be admitted. We recommend that the inclusionary discretion be available to both the prosecution and the defence. (Recommendation 30)
ADMITTING HEARSAY BY CONSENT
8.150 At present, uncontested evidence can be given in the form of written statements or depositions: they can be read out in court, thereby avoiding the inconvenience or expense that would otherwise be incurred in summoning the witness to testify in person. Written statements may also be tendered if certain conditions are satisfied: these conditions include service of the statement by the party proposing to tender it upon the other parties to the proceedings, and none of those other parties serving a counter-notice objecting to its being tendered in evidence. (215) We recommend that hearsay evidence should be admissible if all parties to the proceedings agree to it being admissible. (216) (Recommendation 31)
FOOTNOTES TO PART VIII
(1) See paras 6.48 6.53 above.
(2) See paras 8.4 8.33 below.
(3) See paras 8.34 8.47 below.
(4) See paras 8.48 8.70 below.
(5) See paras 8.71 8.83 below.
(6) See paras 8.84 8.99 below.
(7) See paras 8.100 8.132 below.
(8) See paras 8.133 8.149 below.
(9) See para 8.150 below.
(10) See para 4.17 above.
(11) Para 11.7 of the consultation paper. Professor D J Birch has expressed a similar view: "The Criminal Justice Act 1988: (2) Documentary Evidence" [1989] Crim LR 15, 20.
(12) Para 11.9 of the consultation paper. See paras 11.19 11.23 below for the right to attack the declarants credibility.
(13) [1965] AC 1001. The defendants were charged with conspiracy to receive stolen cars and conspiracy to defraud. The prosecution sought to prove the identities of various cars by producing the maufacturers records. The compilers of the records were not identifiable. There was no existing exception to the hearsay rule under which the records could be admitted.
(14) Another possible exception to the principle that the declarant should be identified is res gestae. In one strand of res gestae the court has to be satisfied that
the event was so unusual or startling or dramatic as to dominate the thoughts of the [declarant], so that his utterance was an instinctive reaction to the event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion
Andrews [1987] AC 281, 301, per Lord Ackner. In those circumstances the statement will be regarded as having an in-built guarantee of credibility. We return to this point at paras 8.119 8.120 below.
(15) Doorson v Netherlands (1996) 22 EHRR 330.
(16) See cl 3(b) of the draft Bill.
(17) See the 1988 Act, ss 23(1) and 24(1); Civil Evidence Act 1968, ss 2(1), 3(1), 4(1), 5(1), and Civil Evidence Act 1972, s 1(2), now superseded by the Civil Evidence Act 1995. See also para 11.10 of the consultation paper.
(18) See Blackstone, para F4.5.
(19) This was recommended at paras 5.25 5.27 of the SLC Report, which was given effect by the 1995 Act, s 259(1)(c).
(20) See para 8.36 below.
(21) For the position where an exception would have applied, see paras 8.18 8.23 below.
(22) Para 11.8 of the consultation paper.
(23) See paras 3.5 3.7 above.
(24) For the specimen direction that might be given in the case of first-hand hearsay, see para 3.23 above.
(25) See cls 3(a) and 12(1) of the draft Bill.
(26) Which we recommend should be preserved: see paras 8.115 8.121 below.
(27) See Part X below.
(28) See paras 8.71 8.83 below.
(29) See paras 8.114 8.132 below.
(30) See cl 10(2) of the draft Bill.
(31) See para 8.35 below.
(32) The authorities are of limited assistance on this point. In Neill v North Antrim Magistrates Court [1992] 1 WLR 1220 the House of Lords held inadmissible the evidence of a police officer that the mothers of two witnesses had told him that their sons were afraid to testify. Lord Mustill (with whom their Lordships agreed) said at p 1229DF:
[I]f the police officers evidence had been that the two young men had spoken to him directly of their fear, their witness statements would have been potentially admissible
In the event, however, the officer gave no such evidence, but merely recounted what the mothers had been told by their sons. Whatever may be the intellectual justification of the exception to the hearsay rule which enables the court to receive first degree hearsay as to state of mind, I feel no doubt that it cannot be stretched to embrace what is essentially a third-hand account of the witness apprehensions.
But it does not follow that s 23, or its Northern Ireland equivalent, would not apply in a case where everyone in the chain of evidence is unavailable to give oral evidence (other than the witness whose oral evidence of the hearsay statement is in question), because the mothers were apparently available (and indeed were at the court house on the day of the hearing). Lord Mustill did not appear to regard that fact as crucial: his reasoning focuses on the number of removes between the frightened boys and the person in the witness box. But the argument that what the mothers had said to the officer was itself admissible under the equivalent of s 23 would obviously have been much stronger if the mothers had been unavailable, as that provision requires.
Other authorities are similarly inconclusive. In Lockley and Corah [1996] Crim LR 113 a transcript of a witnesss evidence was held admissible under s 23 (and s 24) although it contained hearsay (namely a confession); but the point was not taken. And in Castillo [1996] 1 Cr App R 438 the defence argued that a statement was not admissible under s 23 because it was second-hand hearsay; but, as the Court of Appeal pointed out, it was not in fact second-hand hearsay at all, because it concerned the other declarants availability, not his statement. See Professor D J Birchs commentary at [1996] Crim LR 193.
(33) See paras 10.41 10.45 below.
(34) 1988 Act, s 25(1).
(35) See paras 8.133 8.149 below.
(36) Para 11.30 of the consultation paper.
(37) SLC Report, para 5.63, now implemented in s 259(3) of the 1995 Act.
(38) Rule 804(a).
(39) Law Reform Commission of Canada Report on Evidence (1977) s 29.
(40) See cl 5(9) of the draft Bill.
(41) Para 11.46 of the consultation paper.
(42) Jowitt J.
(43) See para 8.42 below.
(44) See cl 5(9) of the draft Bill (" if it is shown that ").
(45) See paras 8.34 8.43 below.
(46) Para 11.13 of the consultation paper. The same recommendation was made at paras 5.34 5.35 of the SLC Report and implemented by the 1995 Act, s 259(2)(a).
(47) See cl 5(2) of the draft Bill.
(48) See para 11.14 of the consultation paper.
(49) See cl 5(3) of the draft Bill. This is similar to the 1995 Act, s 259(2)(a), following the recommendation in the SLC Report at paras 5.36 5.38.
(50) Writ of Subpoena Act 1805, s 3 and Criminal Procedure (Attendance of Witnesses) Act 1965, Sched 2, Part I. Further, by virtue of s 29(1A) of the Criminal Justice Act 1961, a person detained in a prison, young offender institution, remand centre or detention centre in the Channel Islands or the Isle of Man may be compelled to appear before a court in the United Kingdom to give evidence as long as the Secretary of State is satisfied that the attendance of that person is desirable in the interests of justice, or for the purposes of any public enquiry.
(51) Para 11.19 of the consultation paper.
(52) Gonzales de Arango (1991) 96 Cr App R 299, 403404, per McCowan LJ.
(53) Hurst [1995] 1 Cr App R 82, 9193, per Beldam LJ.
(54) Maloney [1994] Crim LR 525.
(55) See French and Gowher (1993) 97 Cr App R 421.
(56) See cl 5(4) of the draft Bill.
(57) Lecturer in Law at the University of Nottingham.
(58) D Ormerod, "The Hearsay Exceptions" [1996] Crim LR 16, 20.
(59) See paras 8.27 8.30 above.
(60) The wording of the 1995 Act, s 259(2)(c), has the same effect.
(61) Para 11.19 of the consultation paper.
(62) See cl 5(5) of the draft Bill.
(63) At paras 11.22 11.27 of the consultation paper.
(64) See paras 11.30 11.33 of the consultation paper. See now recommendation 8 at para 8.30 above.
(65) See paras 8.48 8.70 below.
(66) This provision is set out in Appendix B below.
(67) Criminal Justice (International Co-operation) Act 1990, s 3(8).
(68) See paras 8.48 8.70 below.
(69) See, eg, The Times 16 January 1997, p 8. The issue prompted Irene Adams MPs Witness Protection Bill. It fell at Second Reading.
(70) See the comments of the Court of Appeal in Martin [1996] Crim LR 589.
(71) See s 26 of the 1988 Act, which is set out in Appendix B.
(72) Para F16.9.
(73) R v Acton JJ, ex p McMullen; R v Tower Bridge JJ, ex p Lawlor (1991) 92 Cr App R 98, 1056.
(74) Martin [1996] Crim LR 589.
(75) Report of the Royal Commission, ch 8, para 44.
(76) Ibid.
(77) R v Ashford JJ, ex p Hilden [1993] QB 555.
(78) Ibid, per McCowan LJ at p 560; but the other member of the court, Popplewell J, held that s 23 applies irrespective of the point at which the witness is prevented by fear from giving further oral evidence.
(79) Waters (1997) 161 JP 249. The victim of a serious assault gave some evidence at trial, but professed to be unable to recall his attackers, although he had previously identified them in a witness statement. The court preferred the approach of Popplewell J (see n 78 above): "what matters is whether or not there is, at the time when the section is invoked, any relevant evidence which the witness is still expected to give, because if there is such evidence, then it can properly be said that the witness is in the position where he does not give oral evidence."
(80) Although Thompson (1977) 64 Cr App R 96 indicates that a witness who refused to answer questions could be treated as hostile under the common law, the better view probably is that s 3 of the Criminal Procedure Act 1865 does not apply, and that s 23 of the 1988 Act now does.
(81) Prefas (1988) 86 Cr App R 111.
(82) As was noted in Waters (1997) 161 JP 249, 251FG.
(83) We recommend at para 10.92 below that a witnesss previous inconsistent statement should be admissible as evidence of its contents, and not just as to credit. If this recommendation is adopted then this anomaly will disappear.
(84) Para 11.21 of the consultation paper.
(85) See para 1.23 above.
(86) Eg, a video-recording of the witnesss testimony may be available; or he or she could testify from behind a screen, or via a television link under s 32 of the 1988 Act. We suggest that consideration should be given to extending these latter powers. At present, they are confined to offences against the person, cruelty to children and sexual offences, but it is difficult to see why this should be so. The Recorder of London advocated the wider use of television links. Our view is that evidence by television link is clearly better than hearsay, and we believe the matter should be looked into further. We considered making some suggestions for reform but we have not consulted fully on this issue as it does not involve the use of hearsay, and so we do not think it appropriate to this project. It is no doubt the sort of issue that will be considered by the inter-departmental group (consisting of officials from the Home Office, the Lord Chancellors Department, the Legal Secretariat to the Law Officers, the Crown Prosecution Service, the Department of Health and the Scottish Office) which, the Home Office announced on 23 January 1997, has been asked to review court procedures for people with learning disabilities.
(87) See paras 8.27 8.30 above.
(88) The burden of proof would be on the party opposing the admission of the statement: see paras 8.31 8.32 above.
(89) A similar approach can be found in the case of the defence of self-defence, where fact-finders have to assess whether the threatened individual acted reasonably, taking into account his or her personal circumstances.
(90) Clause 5(7).
(91) 1988 Act, s 23(3)(a).
(92) See cl 5(6)(8) of the draft Bill.
(93) See recommendation 40, paras 10.92 and 10.99 10.100 below.
(94) See paras 2.15 2.17 above.
(95) See Appendix B below.
(96) See cl 4 of the draft Bill.
(97) Paras 9.11 9.18 of the consultation paper.
(98) Para 9.25 of the consultation paper.
(99) Para 11.59(c) of the consultation paper.
(100) For further details of these discretions see paras 9.7 9.9 of the consultation paper.
(101) There may be things about the document (such as the date) which are known to be unreliable, but which are not material to the use which the party wants to make of the statement.
(102) See cl 4(6), (7) of the draft Bill.
(103) That is, for the purposes of pending or contemplated criminal proceedings or of a criminal investigation: s 24(4)(a) and (b).
(104) Ie is dead, is unfit to attend, is outside the United Kingdom and it is not reasonably practicable to secure his or her attendance, or cannot be found, despite all reasonable steps having been taken to find him or her: s 23(2).
(105) And the statement was made to a police officer or some other officer charged with the duty of investigating offences: s 23(3).
(106) Section 24(4)(b)(iii).
(107) See paras 7.26 7.29 of the consultation paper.
(108) This is because s 24(1)(ii), in describing the kind of document that falls within the section, stipulates that "the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with".
(109) See Bedi (1992) 95 Cr App R 21.
(110) (1992) 97 Cr App R 357, 362; see also Carrington [1994] Crim LR 438, of which the facts are given at para 4.18, n 34 above.
(111) See cl 4(5) of the draft Bill, which provides that the person who must be unavailable to testify or unable to remember is the "relevant person", who for the purposes of cl 4 is defined by cl 4(2)(b) as the person who supplied the information contained in the statement.
(112) The full text of ss 76 and 78(1) is set out at Appendix B.
(113) An exculpatory account is obviously not being put in as evidence of the truth of its contents by the prosecution and therefore is not strictly speaking hearsay when adduced by the Crown: see Mawaz Khan [1967] 1 AC 454.
(114) Sharp [1988] 1 WLR 7, affirming Duncan (1981) 73 Cr App R 359.
(115) Garrod, October 18 1996, CA No 93/6450/Z2.
(116) Storey (1968) 52 Cr App R 334, 338, per Widgery LJ.
(117) See R N Gooderson, "Previous Consistent Statements" [1968] CLJ 64, 7074.
(118) Para 11.58 of the consultation paper.
(119) Paras 13.42 13.55 of the consultation paper.
(120) Cross and Tapper, p 307.
(121) CLRC, Evidence Report, para 236(i).
(122) See cl 6(6) of the draft Bill.
(123) In Beckford and Daley [1991] Crim LR 833 the Court of Appeal upheld the judges ruling that the admission of one accused could not be adduced by the co-accused, but in Campbell and Williams [1993] Crim LR 448 a contrary decision was reached.
(124) Myers [1996] 2 Cr App R 335. Leave to appeal to the House of Lords has been granted. Professor Birch points out that the court seems to indicate that even if the confession was voluntary the court has a discretion to exclude it; yet there is authority to the contrary: Lobban v R [1995] 1 WLR 877.
(125) See cl 17 of the draft Bill, which would insert a new s 76A into PACE.
(126) Gunewardene [1951] 2 KB 600, 610, per Lord Goddard CJ; Lowery [1973] 58 Cr App R 35; Spinks (1981) 74 Cr App R 263.
(127) [1986] AC 41.
(128) Para 7.37, n 72 of the consultation paper.
(129) "Hearsay-Logic and Hearsay-Fiddles: Blastland revisited", in P Smith (ed), Essays in Honour of J C Smith (1987). See paras 7.41 7.45 of the consultation paper.
(130) We referred at paras 7.46 7.47 of the consultation paper to cases where this situation seemed to have arisen: Cooper [1969] 1 QB 267, Wallace and Short (1978) 67 Cr App R 291, and Hails (unreported, 6 May 1976, CA, of which the facts are given by Roskill LJ at p 297 of Wallace and Short). See also paras 4.12 4.13 above.
(131) See paras 8.133 8.149 below.
(132) See para 11.60 of the consultation paper.
(133) This provision enables a witness statement to be adduced at trial in the absence of an objection by the opposing party, where advance notice of the intention to adduce the statement has been given.
(134) As amended by Sched 6 to the Banking Act 1979. These provisions permit a copy of an entry in a bankers book to be adduced as prima facie evidence of the entry, provided that certain conditions are complied with.
(135) At a retrial, a transcript of the record of the evidence given by any witness at the original trial may be read as evidence if the parties agree or if the witness is dead or unfit or all reasonable efforts to find or bring him or her to court have failed. The judges leave is required. Although the provision does not make this explicit, such leave would obviously not be granted if it were not in the interests of justice to adduce such evidence.
(165) See paras 8.105 8.107 below.
(137) See Appendix C to the consultation paper. The Merchant Shipping Act 1995, s 286 (replacing s 691 of the Merchant Shipping Act 1894) and the Children and Young Persons Act 1933, ss 42 and 43 (as substituted by the Criminal Justice and Public Order Act 1994, s 44(3), Sched 4, Pt 11, para 5) are also currently in force. The Magistrates Courts Act 1980, s 105, has been repealed by the 1996 Act, ss 47, 80, Sched 1, Pt 1, paras 1, 11, and Sched 5(10) in accordance with provision made by order under Sched 2, para 7.
(138) A similar result has been achieved in relation to civil evidence, where copies continue to be governed by the 1879 Act but the original books benefit from the abolition of hearsay contained in s 1 of the Civil Evidence Act 1995.
(139) By the Banking Act 1979, Sched 6, Pt 1, para 1.
(140) The transcript is admissible where the witness has died, is absent by procurement of the defendant, or is too ill to travel: Hall [1973] QB 496, Thompson [1982] QB 647, Scaife (1851) 5 Cox CC 243. The case where the witness is outside the jurisdiction is not covered. The court has a discretion to exclude the transcript if it would be unfair to the accused to admit it.
(141) As amended by the 1996 Act, Sched 2, para 5. It provides that a transcript may, with the leave of the judge, be read where the parties agree, or where the judge is satisfied that the witness is dead or unfit to give evidence or to attend for that purpose, or that all reasonable efforts to find him or to secure his attendance have been made without success. The full text of the provision is set out at Appendix B. Although it was said by Dunn LJ in Thompson [1982] QB 647, 659, that Sched 2 does no more than state the common law, it can be seen that the circumstances listed are slightly different from those provided for by the common law. Keane states at p 264 that the common law principles apply only where the statutory provision does not, and we think this must be so.
(142) Lockley and Corah [1996] Crim LR 113. The circumstances in which a transcript of the evidence of an absent witness may be read at common law are broadly similar to those in s 23(2) of the 1988 Act, but there is no equivalent to s 23(3) of the 1988 Act. This appears to us to create an anomaly.
(143) See cl 21 of the draft Bill, which would substitute a new para 1 for paras 1 and 1A of Sched 2 to the Criminal Appeal Act 1968.
(144) Which came into force on 1 April 1997.
(145) See paras 5.13 5.20 above.
(146) See paras 4.28 4.31 above.
(147) Hansard (HL) 26 June 1996, vol 573, col 952.
(148) To which we refer at paras 4.28 4.31 above.
(149) See cl 20 of the draft Bill.
(150) For a summary of the law see paras 3.38 3.49 of the consultation paper.
(151) This follows the classification adopted by Cross and Tapper pp 723ff.
(152) For example, R W Baker in The Hearsay Rule (1950) lists this under the heading "spurious exceptions". He accepts that Wigmore had put forward "well reasoned arguments" for such an exception but found no support for it in the English authorities at the time, which in his opinion were concerned either with other hearsay exceptions or with original evidence.
(153) Andrews & Hirst on Criminal Evidence (2nd ed 1992) para 20.19.
(154) See Ratten v R [1972] AC 378.
(155) See, eg, Lord Ackner in Andrews [1987] AC 281.
(156) For example, in Fowkes, The Times 8 March 1856, it was the witness to a murder who shouted "Theres Butcher".
(157) See, eg, Glover [1991] Crim LR 48.
(158) Andrews [1987] AC 281, 300, per Lord Ackner.
(159) Tobi v Nicholas (1988) 86 Cr App R 323.
(160) This summarises the five-stage test set out by Lord Ackner in Andrews [1987] AC 281 at pp 300301.
(161) See Gibson (1887) 18 QBD 537; Teper v R [1952] AC 480, 488, per Lord Normand, relying on Gibson; Bedingfield (1879) 14 Cox CC 341.
(162) The dicta in Teper v R could have been interpreted as applying only to statements concerning the identification of the accused; and in Ratten v R [1972] AC 378 Lord Wilberforce said, at p 389: "The possibility of concoction, or fabrication, where it exists, is an entirely valid reason for exclusion [T]he test should not be the uncertain one whether the making of the statement was in some sense part of the event or transaction."
(163) See para 8.117 above.
(164) Cf our argument that "implied assertions" should be admissible, if relevant, because if there is no possibility of deliberate fabrication then the risk of mistake should go to weight rather than admissibility: paras 7.17 7.21 above.
(165) See paras 8.105 8.107 below.
(166) See cl 6(5)(a) of the draft Bill.
(167) Andrews & Hirst on Criminal Evidence (2nd ed 1992) para 20.16 gives the illustration of a person running off as a policeman approaches. This might appear incriminating; but if, as he runs away, the person calls out that he risks missing his last train home, the fact-finders should know this even if they might choose not to believe the explanation.
(168) An example, in the case of handing over money, might be accompanying words that "I dont owe you anything but I just want you off my back".
(169) [1992] 2 AC 228.
(170) Ibid, at p 246, disapproving Davidson v Quirke [1923] NZLR 552; McGregor v Stokes [1952] VLR 347; Police v Machirus [1977] 1 NZLR 288.
(171) Lord Oliver explained at [1992] 2 AC 228, 274:
I confess that I find some difficulty in seeing how, by any accepted application of the res gestae principle, declarations made to the police after the arrest of the defendant could become part of the res gestae unless it be that, the charge being one relating to a continuing user of the premises, anything done at or on the premises falls to be treated as part of the res gestae.
(172) See cl 6(5)(b) of the draft Bill.
(173) In Moghal (1977) 65 Cr App R 56, the defendant was charged with the murder of R but claimed that the crime had been committed by S. A statement made by S six months before, in which she declared her intention to murder R, was held admissible. But statements which S made to the police after R had been killed, in which she described her state of mind and feelings before and at the time of the killing, were rejected as inadmissible hearsay on the grounds that
the condition precedent to the admissibility of such statements is that they should relate to the makers contemporaneous state of mind or emotion. Contemporaneousness is a question of degree. But we are clear that what [S] said to policemen investigating the crime was far too long after the event to be admitted as evidence of the state of her mind and feelings before and at the time of the killing.
The decision to admit the evidence of declaration of intention was doubted by the House of Lords in Blastland [1986] AC 41, but only on the grounds that it was an isolated declaration of intention made six months before the murder and thus was insufficiently relevant.
(174) See cl 6(5)(c) of the draft Bill.
(175) Aveson v Kinnaird (1805) 6 East 188; 102 ER 1258.
(176) Conde (1867) 10 Cox CC 547.
(177) Nicholas (1846) 2 Car & K 246, 248; 175 ER 102, per Pollock CB.
(178) Gilbey v Great Western Railway (1910) 102 LT 202.
(179) In Gloster (1888) 16 Cox CC 471, the deceased had died from injuries alleged to have been caused by an abortion. Counsel for the Crown contended that the statements of the deceased, which gave both the cause of her injuries and the name of the doctor who had performed the termination, were admissible as they contained evidence of the bodily feelings of the deceased, that the statements could not be admitted in part and excluded in part, and that they must therefore be admitted whole. He also argued that some of the relevant statements were admissible as part of the res gestae, by analogy to the "excited utterances" of the victim of an assault. His arguments were rejected, and Charles J held that "admissible statements were to be confined to contemporaneous symptoms".
(180) Thus in Conde (1867) 10 Cox CC 547, where the accused were charged with murdering a child by starving it, the prosecution was able to produce evidence concerning the childs complaints of hunger.
(181) See cl 6(5)(c) of the draft Bill.
(182) R v Governor of Pentonville Prison, ex p Osman [1989] 3 All ER 701, 731.
(183) In Gray [1995] 2 Cr App R 100 the court considered Tripodi v R (1961) 104 CLR 1 which applies the same considerations to all cases of "preconcert" or joint enterprise, but saw no scope for its application on the facts. See also Tauhore [1996] 2 NZLR 641.
(184) Compare Blake and Tye (1844) 6 QB 126, 115 ER 49 with Devonport [1996] Crim LR 255.
(185) See cl 6(8) of the draft Bill.
(186) See cl 6(2)(4) and 6(7) of the draft Bill. A further common law exception that we recommend should be preserved relates to matters forming part of the professional expertise of an expert witness: see para 9.8 below and cl 6(9) of the draft Bill.
(187) For an overview of the structure of this preferred option see paras 6.48 6.49 above.
(188) See paras 11.7, 11.36 and 11.37 of the consultation paper..
(189) Para 8.136 below.
(190) Paras 8.137 8.142 below.
(191) Paras 8.143 8.147 below.
(192) Paras 8.148 8.149 below.
(193) Buxton J, Professor Sir John Smith and Vivian Robinson QC.
(194) Peter Mirfield (who thought Glanville Williams example at n 198 below a slim basis on which to give up clarity), Mr Justice Ian Kennedy, the Criminal Bar Association, and (on the basis of the Summary document) the Western and the Wales and Chester Circuits.
(195) The Society of Public Teachers of Law, Professor Sir John Smith and the Criminal Bar Association.
(196) Curtis J, the Criminal Bar Association and John Nutting QC.
(197) See paras 8.15 8.17 above, and paras 6.8 6.18 and 11.8 of the consultation paper.
(198) See para 10.74 of the consultation paper. A and B are elderly sisters who are both lying ill when they hear that their acquaintance X has been arrested on a serious charge. A realises that she saw X board a train at a place and time which are inconsistent with his guilt, and she tells this to B just before she dies. B tells this to C, a parson, just before she, too, dies. The information coincides exactly with Xs alibi defence at the trial. Glanville Williams, "The new proposals in relation to double hearsay and records" [1973] Crim LR 139.
(199) D C Ormerod, "The Hearsay Exceptions" [1996] Crim LR 16, 23.
(200) Buckley J.
(201) [1996] Crim LR 16, 24.
(202) Smith (1992) 94 DLR (4th) 590, 601 and 604.
(203) The appropriate approach is set out by Arbour JA of the Ontario Court of Appeal:
[T]he trial judge must determine not whether the hearsay evidence is likely to be true, but whether it should be presented to the trier of fact despite the fact that it was not given under oath and, more importantly, that it was not subjected to the adversarial test of cross-examination. The focus is thus on the circumstantial factors surrounding the making of the statement that are likely to affect its ultimate trustworthiness and that might have beeen elicited by a skilful cross-examination. These factors are referred to as the hearsay dangers. The fewer such dangers, the less the need to exclude hearsay.
Hawkins (1995) 22 OR (3d) 193, 209.
(204) We give some examples of cases where an application might be made at para 8.147 below.
(205) See paras 11.8 11.11 below.
(206) See paras 11.16 11.18 below.
(207) See the specimen direction issued by the Judicial Studies Board and cited at para 3.23 above. This would of course have to be tailored to the individual case, particularly where the evidence admitted under the safety-valve was multiple hearsay.
(208) The facts of Sparks [1964] AC 964.
(209) The facts of Thomas [1994] Crim LR 745.
(210) The facts of Cooper [1969] 1 QB 267. In that case the hearsay point does not appear to have been taken: the confession was admitted at trial, but the defendant was convicted anyway. The Court of Appeal did not criticise the trial judge, but quashed the conviction.
(211) Buxton J, Professor Sir John Smith and Vivian Robinson QC. Sir John Smith thought that generally the same rules ought to apply to the prosecution and to the defence, but that this general principle ought not to apply to the safety-valve.
(212) See para 10.76 of the consultation paper.
(213) On which see paras 12.2 12.8 below.
(214) Such as the principle that a confession is only admissible against its maker: Surujpaul [1958] 1 WLR 1050, 1056, per Lord Tucker; A-Gs Reference (No 4 of 1979) [1981] 1 WLR 667, 676E, per Lord Lane CJ; Spinks (1982) 74 Cr App R 263. We have already considered the position where one co-accused seeks to adduce the admission of another co-accused: see para 8.95 above.
(215) Criminal Justice Act 1967, s 9.
(216) See cl 1(1)(c) of the draft Bill.