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The Law Commission
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Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(SUMMARY) (19 June 1997)
URL: http://www.bailii.org/ew/other/EWLC/1997/245(SUMMARY).html
Cite as:
[1997] EWLC 245(SUMMARY)
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SUMMARY OF PRINCIPAL RECOMMENDATIONS
The Law Commission makes recommendations which would make it easier to put in evidence statements of witnesses who are afraid to testify, evidence produced by a computer, and previous statements of witnesses. The Commission also recommends safeguards where evidence is given without the witness giving that evidence in person.
A major problem in the administration of justice is that many witnesses are too frightened to give evidence. It may be impossible to bring to court a witness who has been intimidated, or to persuade him or her to testify, but proving that intimidation has taken place can be extremely difficult, and at present there are only limited circumstances in which the evidence of frightened witnesses can be given.
The Law Commission recommendations would make it easier to put in evidence the statement of a witness who is “in fear” in several ways, and would mean that, where possible, the decision about whether the witness’s statement could go in without the witness testifying would be taken before the trial.
At present section 69 of the Police and Criminal Evidence Act 1984 requires a party to prove that the computer was working properly and was not being used improperly before computer evidence can be given. The Law Commission says this requirement is unnecessary and recommends its repeal.
[The Law Commission’s proposal on this point was implemented by section 60(1) Youth Justice and Criminal Evidence Act 1999 which provides that section 69 of the Police and Criminal Evidence Act shall cease to have effect.]
At present, when a witness does give evidence it is not usually possible to put in evidence previous statements by that witness. The Commission believes that it should be much easier to do so, particularly as regards: facts which the witness cannot remember when it comes to the trial; the original terms of an identification or description; and the victim’s prompt complaint, whether or not the offence is a sexual offence. These changes would also have the effect of helping frightened witnesses.
Under the present law the court has power to prevent statements from absent witnesses in certain categories being given in evidence. The way this wide power is exercised varies greatly and this means that it is extremely difficult for the prosecution and the defence to predict whether a particular item of evidence will be admitted. Once the court has ruled that it can or cannot be admitted, the trial may have to be aborted, either because the prosecution cannot go on, or because the defence decides to change its plea. In order to make the law more certain and predictable, the Commission recommends that in a limited range of cases, statements of absent witnesses should be automatically admissible.
The Commission recommends making automatically admissible those business documents which do not appear to be unreliable. At present all business documents are only admitted in evidence subject to the court’s discretion. This discretion is exercised in different ways by different judges and magistrates, and parties cannot always predict whether the document will be admitted.
Sometimes the law leads to wrongful convictions or acquittals where the statement of an absent witness cannot be admitted, although it appears to be reliable. The Commission recommends that a court should have a very limited discretion to admit statements of absent witnesses where the interests of justice require it. The Commission is very anxious that the rules of evidence should not lead to unjust results and therefore considers this to be a very welcome change to the present law.
The Royal Commission on Criminal Justice was concerned that because of the rules on hearsay evidence, an expert witness may not, strictly speaking, be permitted to give an opinion in court based on scientific tests run by assistants unless all those assistants are called upon to give supporting evidence in court. It seems to us that this rule is badly in need of change.
The Law Commission agrees, and recommends that the prosecution and the defence should give advance notice of the names of anyone who has supplied information on which an expert will rely, and the nature of that information. The expert could then base any opinion or inference on the information supplied by any such person, without the party having to call that person, unless the court directs otherwise on application by any other party to the proceedings. This should result in a reduction in pointless cross-examination of experts’ assistants.
Because the Commission is making recommendations which would make it easier for an absent witness’s statement to be admitted, and for frightened witnesses’ statements to be admitted, it is concerned that there should be adequate safeguards for the other side.
The Commission is recommending a new safeguard, to prevent wrongful convictions based on statements where the witness has not been cross-examined: a judge should have a duty to direct the jury to acquit, and the magistrates should have a duty to acquit, if the case against the accused depends wholly or partly on the evidence of a witness who does not testify in person which is so unconvincing that, considering its importance to the case, a conviction would be unsafe.
