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Evidence in Criminal Proceedings Hearsay and Related Topics

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Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 138 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This Consultation Paper, completed for publication on 11 May 1995, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 31 October 1995. All correspondence should be addressed to: Ms C Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 0171- 453 1232) (Fax: 0171- 453 1297) It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 138 Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS A Consultation Paper HMSO 0 Cmwpynght 1995 Applications for reproduction should be made w HMSO Copyright Unit ISBN 0 11 730223 6 Printed in the United Kingdom for HMSO Dd 301110 6/95 Cl7 59226 17-19-02 LAW COMMISSION EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS CONTENTS Paragraph Page PART I: INTRODUCTION The background to this consultation paper 1.l-1.9 1 The function of the law of evidence in criminal cases 1.lo-1.15 4 Principles of reform 1.16-1.17 6 The issues 1.18-1.25 6 The limitations on reform 1.26-1.30 9 Method of working 1.31-1.33 10 The structure of this paper 1.34-1.40 11 PART 11: THE HEARSAY RULE TODAY (I): THE RULE Introduction 2.1-2.2 13 What is the rule? 2.3-2.4 13 The purpose of the evidence 2.5-2.8 13 When does the rule apply? 2.9-2.1 1 15 To what material does the hearsay rule apply? 2.12 15 Hearsay evidence as distinct from real evidence 2.13-2.19 16 The extent of the rule: “implied assertions” 2.20-2.25 18 The extent of the rule: negative hearsay 2.26-2.32 19 Summary of the rule 2.33 22 PART 111: THE HEARSAY RULE TODAY (11): EXCEPTIONS TO THE HEARSAY RULE CREATED BEFORE 1988 Introduction 3.1-3.3 23 A. COMMON LAW EXCEPTIONS TO THE HEARSAY RULE 3.4-3.49 23 Admissions and confessions 3.9-3.13 25 Denials, and neutral and mixed statements 3.14-3.20 26 ... 111 Paragraph Page Admissions by a third party 3.21-3.25 30 Statements by deceased persons: declarations against interest 3.26 31 Statements by deceased persons: declarations in the course of duty 3.27 31 Statements by deceased persons: declarations as to public or general rights 3.28 31 Statements by deceased persons: dying declarations in cases of murder or manslaughter 3.29-3.32 31 Statements by deceased persons: declarations as to pedigree; declarations by testators as to their wills 3.33 32 Public documents 3.34-3.37 33 Statements admitted as part of the res gestae 3.38-3.4 1 34 (9 Statements about the maker’s physical condition or mental state 3.42-3.45 35 (ii) Statements of the maker’s intention 3.46-3.49 36 B. STATUTORY EXCEPTIONS CREATED BEFORE 1988 3.50-3.60 37 Depositions 3.50-3.53 37 Written evidence at trial 3.54-3.55 38 Sundry statutory provisions 3.56-3.58 39 Private documents 3.59-3.60 39 PART IV THE HEARSAY RULE TODAY (111): THE CRIMINAL JUSTICE ACT 1988 Introduction 4.1-4.7 41 The structure of the hearsay exceptions in the 1988 Act 4.4-4.7 42 First-hand hearsay: section 23 4 3-4.27 43 “a statement made by a person in a document” 4.9 43 “admissible., .as evidence of any fact of which direct oral evidence by him would be admissible” 4.10-4.11 44 Reasons why the maker is unavailable 4.12 44 The witness “...is dead or by reason of his bodily or mental condition un$t to attend as a witness”: section 23(2)(a) 4.13 44 The witness “is outside the United Kingdom; and. ..it is not reasonably practicable to secure his attendance”: section 23 (2) (b) 4.14-4.18 45 “... all reasonable steps have been taken to find the person who made the statement, but... he cannot be found”: section 23(2) (e) 4.19 46 The witness “...does not give oral evidence through fear or because he is kept out of the way: section 23(3)@) 4.20-4.23 46 Proving the foundation requirements for section 23 4.24-4.27 48 “Business, etc documents”: section 24 4.28-4.39 49 cc... a statement in a document.. .” 4.29 49 iv Paragraph Page “...evidence of any fact of which direct oral evidence would be admissible...” 4.30 49 “. ..created or received by a person in the course of a trade, business, profession [etc]. ..” 4.3 1-4.35 49 Proving the foundation requirements for section 24 4.36-4.39 51 Discretion and leave requirements 4.40-4.65 52 Sections 25 and 26 4.44-4.62 53 Attacking the credit of an absent witness 4.63-4.65 57 The weight of hearsay evidence 4.66-4.67 58 The rule in practice 4.68 59 PART V: THE EUROPEAN CONVENTION ON HUMAN RIGHTS Introduction 5.1-5.3 60 Article 6 5.4-5.25 61 Is there a right to put questions directly? 5.13-5.14 63 Must the defence be able to put its questions at the trial itself, or may the questions be put at an earlier stage? 5.15-5.17 64 Will a statement be inadmissible if the accused never had a chance to question the witness? 5.18-5.25 66 The use at trial of a witness’s previous statements 5.26 69 Victims of crime and the Convention 5.27-5.30 69 The application of the hearsay rule to the defence as to the prosecution 5.31 70 The right of the defendant to adduce hearsay evidence 5.32-5.33 71 Conclusions 5.34-5.39 71 PART VI: JUSTIFICATIONS OF THE HEARSAY RULE Introduction 6.1-6.2 74 “[Hearsay] is not the best evidence...” 6.3-6.7 74 The danger of manufactured evidence 6.8-6.15 75 The risk of errors in transmission 6.16-6.19 77 “...the light which his demeanour would throw on his testimony is lost.” 6.20-6.30 78 “...it is not delivered on oath.” 6.31-6.35 81 The absence of cross-examination: “The jury would have no opportunity to judge the way in which [the prosecution witnesses] stood up to that testing process.” 6.36-6.62 83 The risk of a lay tribunal being misled 6.63-6.80 90 The hearsay rule protects the accused 6.81-6.87 95 V Paragraph Page The right to confront one’s accusers 6.88-6.94 96 “If hearsay were admitted, valuable court time would be wasted hearing evidence of little weight” 6.95-6.99 99 Conclusions 6.100 100 PART VII: CRITICISMS OF THE HEARSAY RULE Introduction 7.1 101 The complexity of the rule 7.2-7.30 101 (i) Judicial interpretation of the exceptions 7.9 103 (ii) The use of the res gestae exception 7.10-7.12 103 (iii) The exception of evidence of physical or mental sensations 7.13 104 (iv) The admissibility of evidence of intention in order to prove that the intention wbs carried out 7.14-7.16 104 (v) Dying declarations 7.17-7.18 105 (vi) Statements of deceased persons 7.19 106 (vii) DzfJiculties arising out of the Criminal Justice Act 1988 7.20-7.30 106 (a) The limits of the kna~ailability’~categories in section 23 7.20 106 (b) Frightened witnesses: section 23(3) (b) 7.2 1-7.24 106 (e) Proving the foundation requirements 7.25 108 (d) The “maker” of the statement in section 24 7.26-7.29 108 (e) The reliance on the exercise of judicial discretion 7.30 109 The waste of court time 7.3 1-7.33 109 The exclusion of cogent evidence 7.34-7.73 110 The exclusion of cogent evidence on behalf of the defence 7.35-7.50 110 (i) Confessions by a co-defendant or non-party 7.37-7.45 111 (ii) An appeal may be allowed on the basis of inadmissible evidence 7.46-7.50 113 The exclusion of cogent evidence tendered by the prosecution 7.51-7.73 114 (i) It may be impossible to adduce evidence fiom particular categories of witness 7.52-7.53 114 (ii) The exclusion of high quality jirst-hand oral hearsay 7.54 115 (iii) The contemporaneous note written down by someone else 7.55 115 (iv) The exclusion of implied hearsay 7.56-7.73 116 “[The hearsay rule] often confuses witnesses and prevents them from telling their story in the witness-box in the natural way.’’ 7.74-7.75 120 The arbitrary nature of the law 7.76-7.79 121 The undiscriminating nature of the rule 7.80-7.82 122 Contravention of the Convention 7.83 123 Summary of the criticisms of the hearsay rule 7.84 123 vi Paragraph Page PART VIII: PREVIOUS REFORM PROPOSALS Introduction 8.1 125 The Law Reform Committee’s Report on Civil Hearsay 8.2-8.5 125 The CLRC’s Report on Criminal Hearsay 8.6-8.16 126 The Roskill Report 8.17-8.28 130 The Royal Commission on Criminal Justice 8.29-8.3 1 134 The Law Commission’s Report on Civil Hearsay 8.32-8.34 134 PART IX: THE NEED FOR CHANGE AND PRELIMINARY ISSUES Introduction 9.1 136 Option 1: no change 9.2-9.3 136 The European Convention on Human Rights 9.4-9.5 136 Additional protection for the accused 9.5 137 Judicial discretion 9.6-9.25 137 Advantages of judicial discretion 9.11-9.13 138 Disadvantages of judicial discretion 9.14-9.18 139 Provisional conclusion 9.19-9.25 140 The formulation of a hearsay rule 9.26-9.35 141 Defining hearsay: implied assertions 9.27-9.32 142 Defining hearsay: the distinction between hearsay and real
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