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Cite as: [1997] EWLC 245

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Evidence in Criminal Proceedings: Hearsay and related topics

Law Commission Report 245

SUMMARY			Summary
PART I: INTRODUCTION			1.1-1.59
	Background to this project		1.1
	Our approach		1.4
	Need for codification of the law of evidence		1.6
	The provisional proposals in the consultation paper		1.15
	The consultation process		1.22
	Developments since the publication of the consultation paper		1.27
	Summary of principal recommendations		1.29-1.54
	Structure of this report		1.59
PART II: THE PRESENT LAW			2.1-2.20
	The rule itself		2.2
	The exceptions to the rule created before 1988		2.6-2.11
	The Criminal Justice Act 1988		2.12
	The Criminal Procedure and Investigations Act 1996		2.20
PART III: THE JUSTIFICATIONS OF THE HEARSAY RULE			3.1-3.38
	Conclusions		3.37
PART IV: IS THERE A NEED TO CHANGE THE PRESENT LAW?			4.1-4.60
	The exclusion of cogent evidence		4.3-4.27
		Evidence tendered by the defence	4.4-4.13
		Evidence tendered by the prosecution	4.14-4.4.27
	Judicial discretion		4.28-4.31
	The complexity of the rule and the exceptions		4.32-4.53
	The rule leads to a waste of court time		4.54
	The rule "often confuses witnesses and prevents them from telling their story in the witness-box in the natural way"		4.56
	Summary of criticisms of the rule		4.58
	Option 1: no change		4.60
PART V: THE SIGNIFICANCE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS			5.1-5.41
	Article 6		5.3-5.5.25
		The right of the defendant to adduce hearsay evidence	5.25
	Provisional conclusions in the consultation paper		5.26-5.32
	The response on consultation		5.33-5.40
	Conclusion		5.41
PART VI: THE SIX OPTIONS FOR REFORM			6.1-6.48
	Option 2: the free admissibility approach		6.3-6.16
		Advantages	6.4-6.7
		Disadvantages	6.8-6.14
		The response on consultation	6.15-6.16
	Option 3: the "best available evidence" principle		6.17-6.32
	Option 4: an exclusionary rule with an inclusionary discretion		6.33-6.37
	Option 5: adding an inclusionary discretion to the existing system		6.38-6.42
	Option 6: categories of automatically admissible evidence		6.43-6.47
	Option 7: categories of automatic admissibility plus a limited inclusionary discretion		6.48
PART VII: THE FORMULATION OF A RULE AGAINST HEARSAY			7.1-7.46
	Assertions and direct evidence		7.2-7.41
		Borderline cases	7.5-7.16
		Our provisional proposal: intention to assert	7.17-7.23
		Modification of the provisional proposal	7.24-7.35
		Our recommended formulation	7.40-7.41
	Statements produced by machines		7.42-7.46
PART VIII: THE EXCEPTIONS TO THE RULE			8.1-8.150
	Statements by persons who are unavailable		8.3
		What kinds of hearsay should be automatically admissible?	8.4-8.33
		What kinds of unavailability should make the statement admissible?	8.34-8.47
	Fear		8.48-8.70
	Business documents		8.71-8.83
	Confessions, mixed statements and denials		8.84-8.99
	Other statutory exceptions		8.100-8.108
	Existing common law exceptions		8.114-8.132
	The safety-valve: an inclusionary discretion		8.133-8.149
	Admitting hearsay by consent		8.150
PART IX: EXPERT EVIDENCE			9.1-9.29
	The present law: exceptions		9.3-9.9
	Problems with the present law		9.10-9.11
	Options for reform considered in the consultation paper		9.12-9.22
	Our recommendation		9.23-9.29
PART X: PREVIOUS STATEMENTS BY WITNESSES			10.1-10.99
	Previous consistent statements		10.2
		Summary of the present law	10.2-10.10
		Justifications and criticisms of the rule against previous consistent statements	10.11-10.26
		The options and the response on consultation	10.27-10.38
		Option1: retain the present law	10.28-10.29
		Option 2: all previous consistent statements to be admissible	10.30-10.34
		Option 3: admissibility only in certain specific circumstances	10.35-10.38
		General considerations	10.39-10.40
		The recommended exceptions	10.41-10.61
		Documentary statements as exhibits	10.62
	Previous statements which take the place of or supplement oral testimony		10.63
		Inability to remember	10.63-10.82
		Children's evidence recorded on video	10.83-10.86
	Previous inconsistent statements		10.87
		Summary of the present law	10.88
		Criticism of the present law	10.89
		The proposed reform	10.91
		Hostile witnesses	10.99
PART XI: SAFEGUARDS FOR THE PARTY AGAINST WHOM HEARSAY EVIDENCE IS ADDUCED			11.1-11.36
	Disclosure of the prosecution case		11.2
	Safeguards inherent in our recommended scheme		11.3-11.5
	Formal notice to be given		11.6-11.7
	Application for a ruling on admissibility to be made pre-trial where possible		11.8-11.11
	The burden of proof		11.12
	The standard of proof		11.13-11.14
	Judicial discretions		11.15
	An additional power to exclude evidence		11.16-11.18
	The right to challenge the credibility of the absent declarant		11.19-11.25
	The court's duty to stop the trial		11.26-11.32
	The judge's direction to the jury		11.33-11.35
	A possible further safeguard		11.36
PART XII: PROCEDURAL MATTERS			12.1-12.15
	Application of the rules		12.1-12.12
		Courts-martial	12.9
		Professional tribunals	12.10
		Coroners' courts	12.11
	Trial procedure		12.13-12.15
PART XIII: COMPUTER EVIDENCE			13.1-13.23
	PACE, section 69		13.4-13.5
		Problems with the present law	13.6-13.14
		Response on consultation	13.15-13.22
		Our recommendation	13.23
PART XIV: OUR RECOMMENDATIONS			Summary
	The rule against hearsay		1
	The exceptions to the rule		2
		The unavailability exception	3
		Fear	4
		Business documents	5
		Confessions, mixed statements and denials	6
		Evidence given at an earlier trial	7
		The Criminal Procedure and Investigations Act 1996	8
		Res gestae	9
		The common enterprise exception	10
		Other common law exceptions	11
		The safety valve	12
		Admitting hearsay by consent	13
	Expert evidence		14
	Previous statements by witnesses		15
		Suggestion of late invention	16
		Evidence of a previous identification or description	17
		Recent complaint	18
		Documentary statements as exhibits	19
		Inability to remember	20
		Previous inconsistent statements	21
	Safeguards for the party against whom hearsay evidence is adduced		22
		Formal notice to be given	23
		Application for a ruling on admissibility to be made pre-trial where possible	24
		An additional power to exclude evidence	25
		Right to challenge the credibility of the absent declarant	26
		The court's duty to stop the trial	27
	Procedural matters		28
	Computer evidence		29
APPENDIX A: DRAFT CRIMINAL EVIDENCE BILL			Appendix A
APPENDIX B: EXTRACTS FROM RELEVANT LEGISLATION Criminal Procedure Act 1865 Bankers' Books Evidence Act 1879 Civil Evidence Act 1968 Criminal Appeal Act 1968 Police and Criminal Evidence Act 1984 Criminal Justice Act 1988 Criminal Justice (International Co-operation)Act 1990 Civil Evidence Act 1995 Criminal Procedure and Investigateions Act 1996			Appendix B
APPENDIX C: LIST OF THOSE WHO COMMENTED ON THE CONSULTATION PAPER			Appendix C
APPENDIX D: PARTICIPANTS IN THE LAW COMMISSION SEMINAR ON CRIMINAL HEARSAY OF 10 FEBRUARY 1996			Appendix D

The Law Commission

Evidence in Criminal Proceedings: Hearsay and related topics

CONTENTS

SUMMARY

PART I: INTRODUCTION

PART II: THE PRESENT LAW

PART III: THE JUSTIFICATIONS OF THE HEARSAY RULE

PART IV: IS THERE A NEED TO CHANGE THE PRESENT LAW?

PART V: THE SIGNIFICANCE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

PART VI: THE SIX OPTIONS FOR REFORM

PART VII: THE FORMULATION OF A RULE AGAINST HEARSAY

PART VIII: THE EXCEPTIONS TO THE RULE

PART IX: EXPERT EVIDENCE

PART X: PREVIOUS STATEMENTS BY WITNESSES

PART XI: SAFEGUARDS FOR THE PARTY AGAINST WHOM HEARSAY EVIDENCE IS ADDUCED

PART XII: PROCEDURAL MATTERS

PART XIII: COMPUTER EVIDENCE

PART XIV: OUR RECOMMENDATIONS

APPENDIX A: DRAFT CRIMINAL EVIDENCE BILL

APPENDIX B: EXTRACTS FROM RELEVANT LEGISLATION

APPENDIX C: LIST OF THOSE WHO COMMENTED ON THE CONSULTATION PAPER

APPENDIX D: PARTICIPANTS IN THE LAW COMMISSION SEMINAR ON CRIMINAL HEARSAY OF 10 FEBRUARY 1996