Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(12) (19 June 1997)

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12.1 In this Part we consider whether the defence should be subject to the same rules on hearsay as the prosecution, and whether our proposed reforms should apply to hearings before tribunals other than criminal courts. We then mention two procedural suggestions which were raised for discussion in the consultation paper, but in respect of which we are not making any recommendations, namely, reducing the number of interruptions to a witnesss oral testimony, and introducing a procedure for taking evidence on commission.

APPLICATION OF THE RULES

Should the same rules on hearsay apply to the prosecution and to the defence?

12.2 It has been suggested that there might be different rules for the admission of hearsay at the instance of the prosecution and of the defence, because the function of the hearsay rule is to protect the accused. For example, Lord Oliver of Aylmerton has stated that the hearsay rule "has been evolved and applied over many years in the interest of fairness to persons accused of crime". (1) But, as we have pointed out, the rule does not always work to the advantage of the defendant. (2) In fact it has been expressly held that special exceptions are not to be made for the defendant:

The idea, which may be gaining prevalence in some quarters, that in a criminal trial the defence is entitled to adduce hearsay evidence to establish facts, which if proved would be relevant and would assist the defence, is wholly erroneous. (3)

12.3 There are some differences between the rules applicable to the prosecution and the defence in the admission of evidence under the 1988 Act, (4) and some statutory provisions which apply to the prosecution but not to the defence. For example, section 78(1) of PACE (5) allows only prosecution evidence to be excluded: it does not apply to the defence. Similarly the defence, but not the prosecution, is protected from the use of hearsay evidence under Article 6(3)(d) of the Convention. (6) There is also a common law discretion which precludes the prosecution (but not the defence) from adducing evidence whose probative value is outweighed by its likely prejudicial effect. (7)

12.4 We agree with the traditional view that the conviction of an innocent person is a more serious miscarriage of justice than the acquittal of someone who is guilty. (8) It has been argued that it follows from this principle that Parliament and the courts should be more concerned to prevent unreliable evidence being adduced by the prosecution than by the defence. (9)

12.5 With that in mind, we considered in the consultation paper the option of having different rules for the prosecution and the defence. (10) Our provisional view was to reject this option, for three reasons. (11) First, because a defendant can ensure his or her acquittal by raising a reasonable doubt, we were concerned that if greater latitude were allowed to the defence than the prosecution, it would be easy to ensure, by the use of manufactured or very low quality hearsay, that a doubt would arise. As the Scottish Law Commission explained,

it is necessary to maintain or improve, as far as possible, the effectiveness of the criminal justice system not only in acquitting the innocent but also in convicting the guilty. No doubt an ideal rule would both protect the innocent and assist the conviction of the guilty. In the real world, however, a rule designed to protect the innocent also protects those who are in fact guilty. That is true of the rule requiring proof of guilt beyond reasonable doubt, and we think it would also be true of a rule giving the defence wider rights than the Crown to lead hearsay evidence. (12)

12.6 Secondly, our provisional view that there should be some form of safety-valve for cogent and credible testimony which ought in the interests of justice to be admitted (13) meant that a defendant would not be precluded from adducing reliable hearsay evidence, as is currently the case, (14) and so there is no need for more liberal rules to apply to the defence.

12.7 The third factor was that, as the Scottish Law Commission explained, (15) the existence of different rules would produce a curious and unsatisfactory result. The prosecution might be entitled to cross-examine a defence witness on hearsay evidence which the witness had given in chief but which the prosecution, had it called the witness itself, would not have been able to elicit. An accused might be entitled to elicit from a defence witness hearsay evidence implicating a co-accused which the prosecution would not have been able to lead.

12.8 Our provisional view was that the same rules on hearsay should apply to the defence as to the prosecution, save for the different standards of proof. (16) On consultation, a large majority of those who responded on this point agreed with our provisional conclusion. (17) The Society of Public Teachers of Law was in favour of different rules for the prosecution and the defence because of the imbalance of resources between prosecution and defence, but did not give details of how this would affect the admission of hearsay evidence. It is noteworthy that this view was not shared by the judges and practitioners who responded on this point, and we do not believe that there is any force in it. We recommend that the same rules on hearsay should apply to both prosecution and defence (save for the different standards of proof and the existing discretions to exclude prosecution evidence). (Recommendation 48)

Should the same hearsay reforms apply in courts-martial, professional tribunals governed by statute, and coroners courts?

Courts-martial

12.9 The present position is that the rules governing the admissibility of evidence in proceedings before courts-martial are the same as those observed in trials on indictment in England and Wales, (18) with the necessary service modifications. Any modifications to the relevant hearsay provisions therefore apply automatically to courts-martial. Our provisional view was that our reforms should apply in courts-martial, and this approach was accepted on consultation.

Professional tribunals

12.10 Certain professional tribunals established by statute are also governed to a considerable extent by the rules of evidence in criminal proceedings. The regulatory bodies for doctors, nurses, midwives and health visitors, dentists and opticians have been created and are governed by statute, and the procedures followed by the professional conduct committees of these bodies are broadly similar to those followed in summary trials. These committees may not receive evidence of complaints which would not be admissible in ordinary criminal proceedings, unless the legal assessor serving on the committee is satisfied that the duty of the committee to make thorough and proper inquiries makes such receipt desirable. (19) Our provisional view was that the reformed hearsay rule should apply to professional tribunals established by statute. This was welcomed by those professional bodies that responded, which included the British Medical Association, the General Dental Council, the General Optical Council and the United Kingdoms Central Nursing Council for Nursing, Midwifery and Health Visiting.

Coroners courts

12.11 We have also considered the position of coroners courts, while bearing in mind that they are not concerned with the question of criminal liability but only with the cause of death. Indeed rule 42 of the Coroners Rules 1984 (20) provides that "No verdict shall be framed in such a way as to appear to determine any question of (a) criminal liability on the part of a named person or (b) civil liability".

12.12 We were told on consultation by the Coroners Society of England and Wales that the existing rules cause no substantial difficulties because a coroner can admit a statement in a document if, in his or her opinion, it is not likely to be disputed and the maker has died or cannot give oral evidence within a reasonable time. This view was supported by others with experience of inquests, (21) who believed that no change in the law was necessary. We agree. We recommend that any reform of the hearsay rule should apply where the criminal rules of evidence currently apply, namely courts-martial and professional tribunals established by statute, but should not affect coroners courts. (Recommendation 49)

TRIAL PROCEDURE

The avoidance of unnecessary interruptions to oral evidence

12.13 In the consultation paper we criticised the current practice because one consequence of it is that witnesses are frequently interrupted in the course of giving evidence when they say "he said ", although what "he said" is often quite innocuous. (22) We provisionally suggested that if a witness gives inadmissible hearsay evidence while giving oral evidence at a trial, it should not be treated as hearsay if it has already been given in some other admissible form in the course of the same trial. (23)

12.14 On consultation some of our respondents doubted that this was a practical or satisfactory way of dealing with the problem. For example, Phillips LJ pointed out: "The fact that witness A has given direct evidence of a fact (which may have been hotly challenged) cannot of itself justify witness B giving hearsay evidence of the same fact. The desirable approach is that the trial procedure should afford Counsel the time to agree what hearsay evidence can be led without objection." Others took a similar view. We have come to the conclusion that this is really a matter of trial management, whether in the magistrates court or the Crown Court, and should not be the subject of legislation. We therefore make no recommendation on this point.

Evidence taken "on commission"

12.15 In the consultation paper we considered briefly the possibility of introducing a system for evidence to be taken "on commission", but concluded that to do so would constitute a radical change to English criminal procedure, and was outside the scope of our remit. (24) We did, however, invite consultees to comment if they took a different view. (25) Professor J R Spencer has argued (26) that such a change would not be so radical, given that evidence may already be taken in advance of trial in both civil and criminal proceedings in England, (27) although he concedes that this does not often occur in criminal proceedings. He points out that there is power to take evidence on commission in Scotland, and this power has recently been extended. (28) In his opinion, leaving the law as it is would result in two undesirable possibilities

failures of justice because vital evidence is missing, or filling the evidential gap with the statements the absent witness made to the police so letting in evidence from people whom the defence have had no chance to cross-examine, and probably infringing Article 6(3)(d) of the European Convention on Human Rights. (29)

12.16 Our view is that there will not be failures of justice due to missing evidence, because if the witness is unavailable then, as Professor Spencer notes, the statement made to the police will be admissible; and we do not think that admitting such a statement would entail breaching the Convention where the declarant is unavailable. (30)

(8)Warner v Metropolitan Police Commissioner [1969] 2 AC 256, 278G, per Lord Reid. Cf the view of the CLRC, at para 27 of its Evidence Report, that "it is as much in the public interest that a guilty person should be convicted as it is that an innocent person should be acquitted".

(9) Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial (3rd ed 1963) pp 209211.

(17) Some respondents agreed that generally the rules should be the same, but thought that the safety-valve should only be open to the defence. See para 8.136 above.

(18) Army Act 1955, s 99 (as amended); Air Force Act 1955, s 99 (as amended); and Naval Discipline Act 1957, s 64A.

(19) General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council, SI 1988 No 2255, r 50(1); Nurses, Midwives and Health Visitors (Professional Conduct) Rules 1987 Approval Order, SI 1987 No 2156, r 18(1); General Dental Council Professional Conduct Committee (Procedure) Rules Order of Council, SI 1984 No 1517, r 26(2); General Optical Council (Disciplinary Committee) (Procedure) Order of Council, SI 1985 No 1580, r 14.

(21) Dr Paul Knapman, HM Coroner, and Mr Paul Matthews, the Editor of Jarvis on Coroners and a Deputy Coroner for the City of London.

(25) Professor Jackson and the Standing Advisory Commission on Human Rights (Northern Ireland) are in favour of giving consideration to procedures which would allow the evidence of vulnerable and frightened witnesses to be taken on commission. This will presumably be one of the matters considered by the inter-departmental group which is reviewing court procedures for people with learning disabilities: see para 8.59, n 86 above.

The Law Commission