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THE LAW COMMISSION EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS CONTENTS Paragraph Page PART I: INTRODUCTION AND SUMMARY OF PRINCIPAL RECOMMENDATIONS 1 The background to this project 1.1 1 Our approach 1.4 2 The need for codification of the law of evidence 1.6 2 The provisional proposals in the consultation paper 1.15 4 The consultation process 1.22 6 Developments since the publication of the consultation paper 1.27 7 Summary of principal recommendations 1.29 7 The rule against hearsay 1.32 8 Automatically admissible hearsay 1.34 9 Unavailability of declarant 1.35 9 Reliable hearsay 1.36 9 Admissions and confessions 1.38 10 Hearsay admissible at the discretion of the court The safety-valve 1.39 10 Frightened witnesses 1.40 10 Experts’ assistants 1.42 11 Previous statements of witnesses 1.44 12 Previous inconsistent statements 1.47 12 Safeguards for the party against whom hearsay is adduced 1.48 13 Computer evidence 1.51 13 Other matters 1.52 14 Financial implications of our recommendations 1.54 14 The structure of this report 1.59 15 PART II: THE PRESENT LAW 16 The rule itself 2.2 16 The exceptions to the rule created before 1988 Common law exceptions 2.6 17 Statutory exceptions created before 1988 2.9 18 iii Paragraph Page The Criminal Justice Act 1988 2.12 19 Section 23 2.14 20 Section 24 2.15 20 Admitting a statement under section 23 or section 24 2.16 20 The Criminal Procedure and Investigations Act 1996 2.20 21 PART III: THE JUSTIFICATIONS OF THE HEARSAY RULE 23 Hearsay “is not the best evidence” 3.2 23 “The danger that hearsay evidence might be concocted”, and the danger of errors in transmission 3.5 24 “The light which his demeanour would throw on his testimony is lost” 3.9 25 “It is not delivered on oath” 3.13 27 “The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination” 3.15 27 “The danger … that untested hearsay evidence will be treated as having a probative force which it does not deserve” 3.19 29 “The rule has been evolved and applied over many years in the interest of fairness to persons accused of crime” 3.29 32 “It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back’” 3.34 33 If hearsay were admitted, valuable court time would be wasted hearing evidence of little weight 3.36 34 Conclusions 3.37 34 PART IV: IS THERE A NEED TO CHANGE THE PRESENT LAW? 36 The exclusion of cogent evidence 4.3 36 The exclusion of cogent evidence tendered by the defence 4.4 36 Confessions by a co-defendant or non-party 4.5 37 An appeal may be allowed on the basis of inadmissible evidence 4.12 39 The exclusion of cogent evidence tendered by the prosecution 4.14 39 It may not be possible to adduce evidence from particular categories of witness 4.15 40 The exclusion of high quality first-hand oral hearsay 4.17 40 The contemporaneous note written down by someone else 4.18 41 The exclusion of “implied assertions” 4.19 41 Attempts to circumvent the hearsay rule 4.26 43 Judicial discretion 4.28 44 iv Paragraph Page The complexity of the rule and the exceptions 4.32 45 The exceptions to the rule 4.37 47 Difficulties arising out of the Criminal Justice Act 1988 The “maker” of the statement in section 24 4.39 48 The discretion fails to take account of the interests of the prosecution 4.40 48 Frightened witnesses: section 23(3)(b) 4.41 49 The limits of the “unavailability” categories in section 23 4.45 50 The wide powers under the Criminal Procedure and Investigations Act 1996 4.46 51 Statements of deceased persons 4.51 52 Dying declarations 4.52 52 The rule leads to a waste of court time 4.54 53 The rule “often confuses witnesses and prevents them from telling their story in the witness-box in the natural way” 4.56 53 Summary of criticisms of the rule 4.58 54 Option 1: no change 4.60 54 PART V: THE SIGNIFICANCE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 56 Article 6 5.3 56 Is there a right to put questions directly? 5.9 58 Must the defence be able to put its questions at the trial itself, or may the questions be put at an earlier stage? 5.11 59 Will a statement be inadmissible if the accused has never had a chance to question the witness? 5.13 60 The use at trial of a witness’s previous statements 5.21 63 Victims of crime and the Convention 5.22 63 The application of the hearsay rule to the defence as to the prosecution 5.24 64 The right of the defendant to adduce hearsay evidence 5.25 64 Provisional conclusions in the consultation paper 5.26 64 The response on consultation 5.33 66 Conclusion 5.41 67 PART VI: THE SIX OPTIONS FOR REFORM 69 Option 2: the free admissibility approach 6.3 69 Advantages 6.4 69 Disadvantages 6.8 70 The response on consultation 6.15 71 Option 3: the “best available evidence” principle 6.17 72 Option 4: an exclusionary rule with an inclusionary discretion 6.33 75 Option 5: adding an inclusionary discretion to the existing scheme 6.38 76 v Paragraph Page Option 6: categories of automatically admissible evidence 6.43 78 Option 7: categories of automatic admissibility plus a limited inclusionary discretion 6.48 79 PART VII: THE FORMULATION OF A RULE AGAINST HEARSAY 81 Assertions and direct evidence 7.2 81 Borderline cases “Implied assertions” 7.5 81 Negative assertions 7.10 83 Identification evidence 7.13 83 Our provisional proposal: intention to assert 7.17 85 Modification of the provisional proposal 7.24 86 What is an intention to assert? Asserting a fact and causing another to believe it 7.25 87 Causing a person to act on the basis that a fact is true 7.33 88 Causing a machine to operate 7.35 89 Intention and purpose 7.36 89 Multiple purposes 7.39 90 Our recommended formulation 7.40 90 Statements produced by machines 7.42 90 Statements not based on human input 7.44 91 Statements based on human input 7.46 91 PART VIII: THE EXCEPTIONS TO THE RULE 93 Statements by persons who are unavailable 8.3 94 What kinds of hearsay should be automatically admissible where the declarant is unavailable? Oral hearsay 8.4 94 Statements by unidentified declarants 8.5 94 Facts of which the declarant could not have given oral evidence 8.9 95 Declarant not a competent witness 8.13 96 Multiple hearsay 8.15 96 Cumulative use of hearsay exceptions 8.18 97 Reliance on the exception by a party responsible for the declarant’s unavailability 8.27 100 The burden of proof 8.31 102 Summary 8.33 102 What kinds of unavailability should make the declarant’s statement admissible? 8.34 103 Death 8.35 103 Illness 8.36 103 vi Paragraph Page Absence abroad 8.37 103 Disappearance 8.40 104 Refusal to give evidence 8.44 105 Statements taken pursuant to letters of request 8.46 106 Fear 8.48 107 The present law 8.49 107 Should there be a specific exception for the statements of witnesses who are afraid to testify? 8.57 109 Should the exception be automatic? 8.58 109 The exercise of the court’s discretion 8.59 110 What kind of fear should suffice? 8.63 111 Statements not made to the police 8.67 112 Witnesses who begin to testify but are afraid to continue 8.68 112 Business documents 8.71 113 Automatic admissibility 8.72 113 A restriction on automatic admissibility 8.74 113 The wording of the exception 8.78 114 Confessions, mixed statements and denials 8.84 116 Our provisional proposal and the response on consultation 8.90 117 Confessions and co-defendants 8.93 118 Confessions and third parties 8.97 119 Other statutory exceptions 8.100 120 Bankers’ Books Evidence Act 1879, sections 3 and 4 8.103 121 Evidence given at an earlier trial 8.105 121 The Criminal Procedure and Investigations Act 1996 8.108 122 Existing common law exceptions Res gestae 8.114 123 Spontaneous statements made by way of reaction to a relevant act or event 8.115 124 Statements accompanying and explaining relevant acts 8.122 126 Statements describing states of mind 8.125 127 Statements describing physical sensations 8.127 127 The common enterprise exception 8.130 128 Other common law exceptions 8.132 129 The safety-valve: an inclusionary discretion 8.133 129 Should there be a limited inclusionary discretion? 8.136 130 What should its terms be? 8.137 130 How it would work in practice 8.143 132 Should it be available to both the prosecution and the defence? 8.148 134 Admitting hearsay by consent 8.150 134 vii Paragraph Page PART IX: EXPERT EVIDENCE 135 The present law The exceptions to the hearsay rule that cover expert evidence 9.3 135 Retention of the existing exceptions 9.8 137 The problems with the present law 9.10 137 Options for reform considered in the consultation paper No change 9.12 138 Retain the present system and impose cost sanctions against the counsel concerned 9.13 138 An exception to the hearsay rule for information relied on by an expert 9.16 139 An exception to the hearsay rule for information relied on by an expert and provided by someone who cannot be expected to have any recollection of the matters stated 9.17 139 An exception to the hearsay rule for information relied on by an expert, subject to a judicial discretion to direct that the supplier of the information be tendered for cross-examination 9.19 140 Our recommendation Extending the disclosure requirements 9.23 141 A new hearsay exception 9.25 142 PART X: PREVIOUS STATEMENTS BY WITNESSES 144 Previous consistent statements Summary of the present law The rule 10.2 144 Exceptions to the rule To rebut a suggestion of late invention 10.3 144 Previous identification 10.5 145 Recent complaint 10.8 145 Justifications and criticisms of the rule against previous consistent statements 10.11 146 Criticisms
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