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5(3257 &2162/,'$7,21$1' 5()2502)$63(&762) 7+(/$:2)(9,'(1&( (/5&) REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Report Consolidation and Reform of Aspects of the Law of Evidence (LRC 117-2016) © Law Reform Commission 2016 35-39 Shelbourne Road, Dublin 4, Ireland D04 A4EO T. +353 1 637 7600 F. +353 1 637 7601 [email protected] lawreform.ie ISSN 1393-3132 REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Law Reform Commission’s Role The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 200 documents (Working Papers, Consultation Papers, Issues Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have contributed in a significant way to the development and enactment of reforming legislation. The Commission’s role is carried out primarily under a Programme of Law Reform. Its Fourth Programme of Law Reform was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in October 2013 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. The Commission’s work on Access to Legislation makes legislation in its current state (as amended rather than as enacted) more easily accessible to the public in three main outputs: the Legislation Directory, the Classified List and the Revised Acts. The Legislation Directory comprises electronically searchable indexes of amendments to primary and secondary legislation and important related information. The Classified List is a separate list of all Acts of the Oireachtas that remain in force organised under 36 major subject-matter headings. Revised Acts bring together all amendments and changes to an Act in a single text. The Commission provides online access to selected Revised Acts that were enacted before 2006 and Revised Acts are available for all Acts enacted from 2006 onwards (other than Finance and Social Welfare Acts) that have been textually amended. i REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Membership President: Mr Justice John Quirke, former judge of the High Court Full-time Commissioner: Raymond Byrne, Barrister-at-Law Part-time Commissioner: Donncha O’Connell, Professor of Law Part-time Commissioner: Ms Justice Carmel Stewart, judge of the High Court Part-time Commissioner: Tom O’Malley, Barrister-at-Law ii REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Staff Law Reform Research Director of Research: Vacant at present Legal Researchers: Hanna Byrne, BCL (Intl) (NUI), MSc (Universiteit Leiden) Claire O’Connell, BCL, LLM (NUI) Hugh Dromey, BCL, LLM (NUI) Niall Fahy, BCL (NUI), LLM (LSE), Barrister-at-Law Owen Garvey, BA LLB (NUI), Barrister-at-Law Finn M. Keyes, LLB (Dub), LLM (UCL) Sarah Keating, BCL, (NUI), LLM (UL) Meghan McSweeney, BCL (Intl) (NUI) with Hist, LLM (Georgetown), Attorney-at-Law (NY) Jack Nea, LLB (NTU), LLM (NUI), Barrister-at-Law Access to Legislation Project Manager: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Deputy Project Manager: Kate Doran, BCL LLM (NUI), PhD (UL), Barrister-at-Law Administration Head of Administration: Deirdre Fleming Executive Officers: John Harding Pearl Martin Brendan Meskell Clerical Officer: Bríd Rogers Library and Information Manager: Órla Gillen, BA (DCU), MLIS iii REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Principal Legal Researchers for this Report Kate Clancy LLB (Dub) Joseph Harrington LLB (Ling Franc) (Dub), BCL (Oxon), Barrister-at-Law Finn M. Keyes LLB (Dub), LLM (UCL) Kerri McGuigan LLB (Dub), LLM (UCL), Attorney-at-Law (NY) Helen Whately LLB, LLM (DUB), Barrister-at-Law iv REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Acknowledgements The Commission would like to thank the following who provided valuable assistance: Academy of Experts, England Senan Allen SC Margot Barnes, Occupational Therapy Consultant Fiana Barry, Occupational Therapist Raymond Briscoe, Solicitor John G Cahill, Psychiatric Nursing Consultant and Safety Advisor Mr Justice Frank Clarke, judge of the Supreme Court Michael Collins SC Caroline Conroy Keeley, Solicitor, La Touche Training Roger Derham, Consultant Gynaecologist and Forensic Examiner Karl Dowling BL Remy Farrell SC Caitlín Ní Fhlaitheartaigh BL, Office of the Attorney General Forensic Science Ireland John T Garrett, John T Garrett & Associates Consulting Engineers Mary Rose Gearty SC Catherine Ghent, Solicitor Dr Liz Heffernan, School of Law, Trinity College Dublin David Holland SC Dr Niamh Howlin, Sutherland School of Law, University College Dublin Irish Translators’ and Interpreters’ Association Ciaran Joyce BL Charles Lysaght BL David Madden, Document Examination Ireland Hugh Madden BL Eoin Martin BL Marie-Claire Maney, Revenue Solicitor, Revenue Commissioners vi REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Henry Matthews, Office of the Director of Public Prosecutions Darach McCarthy, Solicitor, Chair, Criminal Law Committee, Law Society of Ireland Mr Justice Patrick McCarthy, judge of the High Court Sergeant Patrick Joseph McCarthy, An Garda Síochána Declan McGrath SC Fachtna Murphy, former Garda Commissioner Northern Ireland Law Commission Sabrina O’Carroll, O Carroll Kinsella Nursing Consultants Feargal Ó’Dubhghaill BL, Office of the Attorney General Deirdre O’Gara BL, Office of the Attorney General Mr Justice Iarfhlaith O’Neill, former judge of the High Court Robert Purcell, Solicitor, Vice Chair, Criminal Law Committee, Law Society of Ireland Ms Justice Úna Ní Raifeartaigh, judge of the High Court Noreen Roche, Nursing Consultant and Safety Officer Society of Chartered Surveyors Dr Michael Stockdale, Northumbria Law School and Centre for Evidence and Criminal Justice Studies, Northumbria University, England Jack Tchrakian BL Eamonn Quinn, Unmarried and Separated Parents of Ireland Full responsibility for this publication lies with the Commission. vii REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE Table of Contents Table of Contents viii 6800$5< 1 CHAPTER 1 General Rules of Evidence: Relevance and Admissibility 11 A Relevance 11 (1) Establishing relevance 13 B Admissibility 14 Reliability 14 Agreement to admit 14 Determining admissibility 16 C Discretion to Exclude Relevant Evidence 17 D The Principle of Orality 20 E Classifying Evidence: Oral, Physical and Documentary Evidence 22 CHAPTER 2 The Rule Against Hearsay 24 A Introduction to Hearsay 24 (1) The rationale behind the rule against hearsay 25 B Defining Hearsay, and the Distinction between Original Evidence and Hearsay 29 The scope of the rule against hearsay 29 Implied assertions 33 Distinguishing hearsay and real evidence in electronic recordings 37 C Current Approach to Inclusion and Exclusion: Overview of the Law in Ireland 42 Statutory basis for admitting hearsay in interlocutory hearings 42 Restrictions on admission of hearsay in interlocutory hearings 43 Statutory provisions concerning the hearsay rule in criminal proceedings44 Limited statutory reform of the rule against hearsay in civil proceedings 45 (5) Hearsay in proceedings other than court proceedings 47 D The Commission's 1988 Report on Hearsay in Civil Cases 48 YLLL REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE E The Rule Against Hearsay in Civil Proceedings: Reconsidering the Recommendations of the 1988 Report 50 The constitutional and human rights dimension 52 Practical effect of abolition in civil Sroceedings in the United Kingdom 56 F Business Records and Documentary Evidence in Civil Proceedings 60 Bankers Books Evidence Acts 62 Criminal Evidence Act 1992 66 G Summary of Conclusions 77 CHAPTER 3 Exceptions to the 5ule $gainst +earsay 79 A Consideration of the Exceptions to the Rule Against Hearsay 79 Admissions and confessions 79 Res gestae 80 Dying declarations 83 Certain statements of persons now deceased 85 Testimony in former proceedings 90 Previous statements of witnesses 91 B Hearsay and Sentencing 98 C Evidence of Previous Criminal Convictions as Hearsay: Nevin v Nevin 100 (1) Reform 104 D Judicial Reform of the Hearsay Rule 108 Ireland 108 England 110 Scotland 110 Canada 111 United States 113 Australia 113 New Zealand 115 European Court of Human Rights 11 Conclusions 118 L[ REPORT: CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE CHAPTER 4 Documentary and Electronic Evidence 119 A Definition of document and writing 119 Definition of document 119 The definition of writing 120 Reforming the definition of a “document” 120 B Admissibility and Authentication of Documentary Evidence 122 (1) Producing the original best evidence rule and the original document rule122 Other means of authenticating a document 126 Reform of rules on authentication 128 C Hearsay and Documentary Evidence 128 Public documents 129 Private documents 134 Business records 134 Documents generated in anticipation of litigation 134 Record made in the course of duty by a person now deceased 136 Ancient documents 136 D Documents Originating from or Intended for Use in another 137
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