Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(4) (19 June 1997)

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4.1 There is little to be gained from reforming any branch of the law unless it is clearly defective. In the consultation paper we examined the criticisms, both theoretical and practical, which can be made of the hearsay rule; (1) we now consider those criticisms in the light of the helpful responses that we have received, in order to evaluate the first option available to us namely to retain the present law.

4.2 The most prominent defect of the rule is that it leads to the arbitrary exclusion of cogent evidence, and so we address this first. (2) Secondly, we consider the merits and disadvantages of leaving the question of admissibility to the discretion of the court. (3) Thirdly, we argue that the rule and its exceptions are unnecessarily complex. (4) Fourthly, we examine how this complexity wastes court time. (5) We then look at the way in which the rule confuses witnesses. (6) We conclude that there is a need for change. (7)

THE EXCLUSION OF COGENT EVIDENCE

4.3 We now examine the cases where reliable evidence may be excluded by the hearsay rule.

The exclusion of cogent evidence tendered by the defence

4.4 The hearsay rule applies equally to both prosecution and defence. The result is that it sometimes makes it impossible for a defendant to put before the court credible evidence which points to his or her innocence. Thus in Sparks v R (8) it prevented a white man accused of assaulting a three-year-old girl, who was not called as a witness, from leading evidence that she had initially described her attacker as "a coloured boy". In Thomson (9)the accused was charged with using an instrument to procure an abortion. His defence was that the woman had induced the miscarriage herself, but he was not allowed to adduce evidence that she had told others not only that she intended to do this, but also that she had done so. The inadmissibility of hearsay evidence can lead to anomalous and undesirable results. (10)

Confessions by a co-defendant or non-party

4.5 Evidence of a confession which exonerates the accused may come from a co-accused, (11) or from someone not involved in the proceedings. In Blastland, (12) B was charged with the buggery and murder of a 12-year-old boy. Bs defence was that he had attempted to bugger the boy but had been frightened off by the appearance of a third party, who might have been one MH. The defence sought to adduce statements made by MH which showed that he had specific knowledge of the circumstances of the offence before such information was in the public domain, and a confession made by him (which he later retracted, remade and again retracted). The trial judge allowed none of this evidence to be admitted, on the ground that it was all inadmissible hearsay.

4.6 The House of Lords refused to reconsider the question of the admissibility of the confession by MH, but did consider the following point of law:

Whether evidence of words spoken by a third party who is not called as a witness is hearsay evidence if it is advanced as evidence of the fact that the words were spoken and so as to indicate the state of knowledge of the person speaking the words if the inference to be drawn from such words is that the person speaking them is or may be guilty of the offence with which the defendant is charged.

4.7 Their Lordships held that MHs words were irrelevant to the issue of the accuseds guilt. In reaching this conclusion they were swayed by the fact that MHs confession to the crime was itself inadmissible. Thus, if the fact of his knowledge were admissible, it would, as Lord Bridge said in the leading speech,

lead to the very odd result that the inference that [MH] may have himself committed the murder may be supported indirectly by what [MH] said, though if he had directly acknowledged guilt this would have been excluded. (13)

4.8 Their Lordships held that the evidence B sought to adduce was not of probative value on the issue of whether B had or had not committed the offences. Its probative value lay in the truth of MHs knowledge (which could be proved by other means), but it did not follow indisputably that MH could only have acquired this knowledge by committing the crimes himself: he could have acquired it by witnessing them. Therefore, the fact of his knowledge was not sufficiently relevant to the issue of Bs guilt. (14)

4.10 There is a fear that if confessions by third parties were admitted, fabricated confessions would be a regular feature of criminal trials, and acquittals would result from the introduction of unworthy evidence. It would be too easy for guilty people to introduce evidence of a fictitious confession, and the jury would have no chance of distinguishing the real ones from the false ones.

4.11 The counter-argument is that if the evidence shows that there is a possibility that someone else committed the crime alone, and the jury cannot dismiss that possibility, then they cannot be sure of the accuseds guilt, and therefore should not convict. The fact that someone else has confessed to the offence is logically relevant to the issue of whether the defendant committed it: this is so whether the other person is a co-defendant who gives evidence, a co-defendant who exercises the right not to give evidence, a co-defendant who is tried separately, or a person who is never caught or never prosecuted. (16) Moreover, it will normally be impossible for a defendant to adduce the oral evidence of the person who has confessed, because that person could rely on the privilege against self-incrimination. (17)

An appeal may be allowed on the basis of inadmissible evidence

4.12 Cogent evidence that someone other than the accused has committed the crime may be inadmissible, but this rule can pose a worrying dilemma for an appellate court. The court may quash a conviction because it knows of this inadmissible evidence, although it may try to disguise the fact that this is what is being done. (18) On occasion it may "take into account evidence which perhaps on a strict view of the laws of evidence it ought not to take into account". (19) In Wallace and Short (20) the appellants asked the Court of Appeal to adopt this course because evidence had come to light since the trial that two other people had confessed to the offences for which the appellants were serving prison sentences. The defence accepted that evidence of the alleged confessions would not have been admissible, and the appeal was rejected. (21)

4.13 The existing law leads to injustices which only the Court of Appeal can remedy, and then only after the defendant may have been deprived of his or her liberty and much public money wasted. As JUSTICE has commented:

We think that it is a powerful argument against a strict exclusionary rule that miscarriages of justice can be avoided only if the appellant is lucky enough to find a court prepared to decide his case otherwise than according to law. (22)

It is obviously a very serious objection if the hearsay rule makes it impossible for a defendant to have a fair trial.

The exclusion of cogent evidence tendered by the prosecution

4.14 If the exclusionary rule is capable of causing wrongful convictions by sometimes making it impossible for the defence to lead cogent evidence of innocence, it is no less capable of causing unjustified acquittals by making it impossible for the prosecution to lead cogent evidence of guilt. This is typically so where a key witness, such as the victim of the offence, is not in a position to come to court to give oral evidence.

It may not be possible to adduce evidence from particular categories of witness

4.15 The courts insistence on oral evidence poses particular problems for particular categories of people. For example, serious problems arise when a foreign tourist who becomes the victim of a crime has returned home by the time the case eventually comes to trial. There are also particular obstacles to adducing evidence under the present system where the witness is very young, very old, mentally vulnerable (23) or seriously ill, or finds giving oral evidence in public too much of an ordeal. (24) The existence of the hearsay rule in effect grants a measure of immunity to those who commit offences against such vulnerable people.

4.16 To a very limited extent it is sometimes possible to avoid these difficulties by making use of some little-known statutory provisions (25) (and presumably the new Magistrates Courts Act 1980, section 97A), (26) which enable magistrates to take depositions from such witnesses out of court. However, these provisions are rarely used. The "documentary hearsay" provisions of the 1988 Act were also intended to solve some of these problems. (27) The evidence that these provisions make potentially admissible, however, is usually the absent witnesss statement to the police, which, unlike a deposition taken before a magistrate, means evidence given on an occasion when the defence had no opportunity to put questions to the witness. Moreover, research has shown that such a statement may not accurately reflect the witnesss account of events. (28) For this reason, judges often feel obliged to refuse leave for such evidence to be given.

The exclusion of high quality first-hand oral hearsay

4.17 Section 23 of the 1988 Act (29) provides for the admission of first-hand documentary hearsay in certain cases. There is no equivalent exception for first-hand oral hearsay, however reliable it might be. Our view is that it is difficult to justify this distinction. (30)

The contemporaneous note written down by someone else

4.18 There have been several cases where a witness ("W") saw a car registration number and called it out to another person ("X") who wrote it down, but W did not check Xs note for accuracy. (31) Strict application of the hearsay rule would mean that neither W nor X may give evidence of the number noted by X. (32) However, if W tells X a car registration number, who then writes it down in Ws presence, and W checks it, then W could use it, not as evidence of what he or she told X, but to refresh his or her memory. (33) We regard this state of affairs as showing, in Diplock LJs words, "a lack of logic". (34)

The exclusion of "implied assertions"

4.19 In Kearley (35) a majority of the House of Lords held that the hearsay rule extends to "implied assertions". (36) The case concerned evidence of telephone calls and visits by unidentified people to premises occupied by the accused. The callers believed that they were asking the accused to supply them with illegal drugs, but they were in fact speaking to police officers, the accused having been arrested. The relevance of the calls lay in the fact that the callers must have believed that the accused would supply drugs. It was the view of the House of Lords, though not of the Court of Appeal, (37) that the calls were implied assertions of that fact. Because the callers could not be cross-examined about this belief, the calls were hearsay and therefore inadmissible. (38)

4.20 The decision in Kearley has been the subject of much criticism. (39) Where there is an implied assertion, a fact not explicitly asserted is inferred from words or conduct which may or may not themselves be an assertion: for example, they may take the form of a question, or a greeting. In ordinary life it is common for a fact to be inferred from the fact that a person is behaving as if it were true. If this reasoning is not permitted, it follows that much relevant evidence is excluded. Indeed it could be argued that every human utterance or act contains an implied assertion of some kind, namely as to the intention, state of mind or belief of the speaker or actor. (40) If the hearsay rule excludes evidence of any conduct which is adduced to prove any such fact, it is exceptionally wide.

4.21 Even if it is right in principle that implied assertions should be caught by the hearsay rule, distinguishing them from direct evidence is not always easy. Kearley itself is one example. Others include cases where a person fails to state a fact, which he or she might have been expected to state if it were true; (41) and cases where a persons words or conduct help to identify that person. (42) We are troubled by the fact that many implied assertions no doubt go unspotted because they are so much harder to recognise: express assertions are more readily detected by an advocate and excluded by the court. The result must be that the law will be applied differently in different courts.

4.22 The rationale for the exclusion of implied assertions is that, as a class of statements, they are generally not to be relied upon. If an out-of-court assertion is repeated in court by the person who heard it, and not by the person who made it, the other party faces difficulties in challenging the credibility of the person who is not in court. Since the hearsay rule prevents A reporting an express assertion made by B, the argument goes, it follows that an implied assertion to the same effect should also be excluded. (43)

4.23 The counter-argument is that, as a class, implied assertions are more reliable than assertions made for the purpose of communicating information. This proposition is sometimes expressed by saying they are "self-authenticating". If someone acts on a belief in a particular state of affairs, that is a guarantee of sorts that the belief is genuine. For example, one can be confident that a sea-captain genuinely believes the vessel to be seaworthy if he sets sail in it himself.

4.24 These factors have led Cross and Tapper to suggest that only statements made with the intention of asserting the facts stated should be caught by the hearsay rule. (44) We agree. Such a rule should be easier to administer than the present rule, since it should be relatively easy to determine what facts a speaker intended to assert, and whether non-verbal conduct was intended to assert any facts at all.

4.25 We have had the opportunity of ascertaining how a legal system copes with the admission of implied assertions. In Scotland, evidence of such assertions is admissible. (45) The question whether they are hearsay does not seem to have expressly arisen, but in Lord Advocates Reference No 1 of 1992 (46) the Lord Justice-General indicated that the dissenting speeches in Kearley (47) represented Scottish practice. Our enquiries suggest that in Scotland no problems appear to have arisen as a result of the admission of implied hearsay. We find this persuasive support for its admission in England and Wales. For all these reasons we provisionally concluded (48) that the rule should not extend to implied assertions.

Attempts to circumvent the hearsay rule

4.26 If cogent evidence can sometimes be excluded by the rule, it is perhaps not surprising that parties sometimes attempt to evade inconvenient exclusions by disguising the true nature of the evidence being presented. The courts have condemned this practice. Thus Lord Devlin said in Glinski v McIver:

He added that such evidence is clearly objectionable. If there is nothing in it, it is irrelevant; if there is something in it, what there is in it is inadmissible. (50) Despite these admonitions, the practice remains common.

4.27 Lord Devlins criticism was accepted as valid by the vast majority of the respondents, though the Judge Advocate General and the Wales and Chester Circuit pointed out that to some extent it begs the question as to whether hearsay evidence is cogent evidence. Nevertheless, upon reconsidering the examples above we remain clearly of the view that some hearsay evidence is cogent and is excluded by the rule. The only ways to remedy this are to abolish the rule altogether, to ensure that the categories of exceptions are so wide as to include all cogent hearsay, or to create an inclusionary discretion. We consider these possibilities below. (51)

JUDICIAL DISCRETION

4.28 In the consultation paper we set out in some detail what we perceived to be the advantages and disadvantages of judicial discretion. (52) The prime advantage is that it enables the court to tailor decisions to the individual case. The major disadvantage is that, where discretions are available, they will be exercised differently by different judges and magistrates. Not only will there be inconsistent decisions from one case to another, but it will be hard for the parties to predict what evidence will be admissible. This is all the more important as the existence of a right to appeal against a judges or magistrates decision is of limited value. The prosecution has no right of appeal; (53) while, when the defence seeks to challenge a ruling on appeal, the Court of Appeal or Divisional Court cannot simply substitute its own decision for that of the judge or magistrate. The appellate court cannot interfere unless the judicial discretion has not been lawfully exercised, because the decision was one which no reasonable tribunal could reach, or irrelevant factors have been taken into account, or relevant factors have either been left out of account or not given enough weight. (54)

4.29 The legislative structure adopted by Parliament has been to create new and important exceptions to the hearsay rule but to make them subject to the discretion of the court. For example, in the case of "documentary hearsay", (55) not only does the court have a general discretion to exclude a statement which is otherwise admissible, but, if the statement was made for use in criminal proceedings, it is admissible only if the court gives leave. Similarly, when Parliament made videotapes of interviews with children admissible as evidence in criminal proceedings, (56) it gave judges a discretion to exclude them. The 1996 Act also places the question of admissibility entirely in the hands of the court. (57) These discretions are in addition to the general discretions to exclude prosecution evidence. (58) We were very critical of the use of unfettered discretion because our inquiries indicated that the way in which the discretionary powers conferred by the 1988 Act are in fact exercised varies greatly.

4.30 As we said in the consultation paper, (59) the fact that admissibility depends on the courts discretion lays it open to a further criticism, namely that it is arbitrary. The arbitrariness is not always apparent on the face of the legislation: for example, the 1988 Act sets out the factors that the court must take into account. But the appearance of certainty is illusory because the factors to be taken into account pull in opposite directions, so leaving the judge or magistrate more or less free to admit or exclude the evidence according to his or her own judgment, so long as the relevant factors are taken into account. In the case of the 1996 Act, no factors are set out for the court to take into account: according to Baroness Blatch, the Minister of State for the Home Office, (60) it is simply assumed and hoped that the court will turn to the 1988 Act for guidance.

4.31 We stated in the consultation paper that different judges reach different conclusions about whether or not untested evidence should be admitted in a particular case. (61) Our research has also shown that a small minority of judges disapprove of the use of videotapes, and use their discretionary power to see that such evidence is routinely excluded. (62) These criticisms were widely supported on consultation, and the Serious Fraud Office considered that the most serious fault of the present law on hearsay is its uncertainty. The problem of arbitrary justice is a very real one. We will bear this in mind when we consider to what degree the court should have a discretion to exclude or include hearsay evidence. (63)

THE COMPLEXITY OF THE RULE AND THE EXCEPTIONS

4.32 "The rule against hearsay is one of the oldest, most complex and most confusing of the exclusionary rules of evidence. One of the reasons is that its definition and the ambit of exceptions to it are both unclear". So begins chapter XIII of the current edition of Cross and Tapper, which devotes over 90 pages to explaining the complexity of the hearsay rule. Practitioners books also devote much attention to the hearsay rule it takes up over 80 pages of the current edition of Blackstone, for example.

4.33 The complexity of the hearsay law has several aspects to it. First, there is uncertainty about the dividing lines between hearsay and direct evidence, and between statements that fall foul of the hearsay rule and those that are not hearsay because they are adduced merely to show the fact that they were made. (64) Second, the application of the rule is difficult. As we pointed out in the consultation paper, (65) one consequence is that directions have to be given to the lay tribunal that are complex and difficult to apply. For example, "disregard the evidence of X insofar as it points to guilt; you may regard it only as evidence of consistency"; or "you must ignore the evidence of Z when you consider Ys guilt but you must take account of it when you consider Zs guilt". In the absence of research, it is not known whether juries or lay magistrates are able or willing to follow such directions; but it cannot be easy for them to do so.

4.34 It is not only lay people who find the law confusing. Kearley (66) is an example of the intricacies of the hearsay rule taxing very experienced judges. In that case, three days in the House of Lords were occupied by oral argument on the apparently straightforward issue of whether, on a charge of possessing drugs with intent to supply, a prosecutor could rely on evidence by the police that they had been to the home of the defendant when he was not there, and had there received telephone calls and personal calls from people (who were not called as witnesses) asking about drugs that the defendant had for sale. After reserving judgment, three of the Law Lords (67) held that the hearsay rule led to the exclusion of this evidence, whereas the trial judge, (68) three judges in the Court of Appeal (69) and two dissenting members of the House of Lords (70) would have admitted it. The speeches in the House of Lords on this point occupied 51 pages.

4.35 During our work on this project we have been impressed by constant judicial criticism of the hearsay rule. (71) Lord Griffiths said in Kearley that

most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply "Then the law is an ass". (72)

As we have seen, the majority held that the law did indeed forbid the jury to consider the evidence. (73) Clearly the rule can help to cause miscarriages of justice, particularly when it leads to the exclusion of cogent evidence. Since we produced the consultation paper, Beldam LJ has said that "relevant evidence , dubbed as hearsay and thus excluded, is hardly likely to enhance public esteem of the criminal process". (74)

4.36 Practitioners (75) and the Government (76) have called for changes to the rule. There has also been stringent criticism from Cross and Tapper (77) and other academic sources. (78) These criticisms were reinforced by our consultees. Curtis J thought the 1988 Act needed repeal and a total redraft, while Professor Sir John Smith thought that the exceptions to the rule were unnecessarily complex. JUSTICE disagreed, arguing that the problems said to be presented by the rule are overblown and overrated. Having taken note of these responses, we (like the substantial majority of our consultees) are still of the view that the present rule is too complex.

The exceptions to the rule

4.37 The cause of the difficulties and complexities of the hearsay rule is probably the haphazard and erratic way in which the exceptions have arisen and have been developed: as Lord Reid explained, "when the rule proved highly inconvenient in a particular kind of case it was relaxed just sufficiently to meet that case and without regard to any question of principle". (79) Despite the ruling in Myers, (80) where the House of Lords held that there was to be no further judicial development of exceptions to the rule, the courts have significantly extended the scope of existing exceptions on the basis of reliability, with the effect that (as Professors Ashworth and Pattenden pointed out 11 years ago) (81) evidence is now admissible which would formerly have been excluded.

4.38 We now set out some examples of the anomalies engendered by the present exceptions to the rule.

4.39 Where there are two people, one who provides the information and another who records it, the "maker" of the statement the one who must be unavailable or unable to remember, if the statement was prepared for the purpose of criminal proceedings or a criminal investigation has been defined as the person who did the recording, not the person who supplied the information. (83) The effect is that, where an oral statement is made by one person to another person who records it in the course of business for the purpose of criminal proceedings or a criminal investigation, the record is admissible if the person recording it cannot remember the matters stated even if the person who made the oral statement can. This appears to be a drafting oversight and cannot have been the intention of Parliament. (84)

4.40 The principles to be followed by the court in exercising its discretion under section 25 of the 1988 Act, when deciding whether to admit statements under sections 23 and 24 of that Act, appear to assume that such evidence will be adduced by the prosecution and not by the defence. Thus one of the matters that the court is bound to take into account is any risk,

having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not intend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them. (85)

The omission to refer to the interests of the prosecution seems strange, given that it may be the defence that is seeking to adduce the hearsay evidence. (86)

4.41 This subsection permits the admission of statements by witnesses who have been intimidated by the accused, or by others on behalf of the accused. Such admission is not automatic, as the decision is left to the discretion of the judge or magistrates. (87) Proving that intimidation has taken place can be difficult.

4.42 The wording of the subsection is also wide enough to include statements by witnesses who are so traumatised by the offence, or so fearful of the experience of giving evidence, that they cannot or will not give oral testimony. Again, the decision on admissibility will rest with the court, and any part played by a party to the proceedings in intimidating the witness will no doubt be a factor taken into account in the exercise of the discretion. If the witnesss fear has no connection with the accused, it may not be just to allow the statement to be admitted without cross-examination of the witness. (88)

4.43 Section 23 is wide enough to cover not only witnesses who, through fear, fail to attend court at all, but also those who come to court but refuse to be sworn, or who enter the witness-box but become incoherent through fear. However, the section requires that the witness "does not give oral evidence". In the consultation paper (89) we noted that it is not clear from the statutory wording whether this covers a witness who has given some evidence. (90) The Court of Appeal has recently given some guidance on the point, holding that

what matters is whether or not there is, at the time when the section is invoked, any relevant evidence which the witness is still expected to give, because if there is such evidence, then it can properly be said that the witnesss is in the position where he does not give oral evidence. (91)

4.44 A further complication arising out of this provision is that if a witness is too frightened to give evidence at all, or enters the witness box but refuses to answer questions, (92) section 23 will apparently cover the situation; but a witness who is intimidated into telling a false story will be deemed hostile. (93) A previous statement inconsistent with the witnesss oral evidence may then be put to the witness, and if necessary proved; but it will go only to the witnesss credit, and will not be evidence of the truth of its contents. By contrast, where a statement is admitted under section 23 of the 1988 Act, it is evidence of the truth of its contents. Thus, whether or not the fact-finders are allowed to have regard to the contents of the previous statement on the issue of guilt may depend on how the individual reacts to intimidation. Our provisional view was that this is not satisfactory.

4.45 The provisions of the 1988 Act do not assist in every case where it is impossible to call a witness for example if the witness has diplomatic immunity, (94) or attends court but claims the privilege against self-incrimination. (95) Such witnesses are just as unavailable as an ill witness, whose evidence will be admissible under section 23. In the consultation paper we suggested that some additional categories of "unavailability" might be added to section 23. (96) We consider below whether a witnesss statement should be admissible where he or she attends court but refuses to testify. (97) We did not propose that a statement should be admissible where a witness cannot be compelled to attend because he or she has diplomatic immunity, and only one respondent suggested that it should. (98) We therefore do not pursue the point in this report.

4.46 As we have seen, (99) the 1996 Act enables statements admitted at committal proceedings, or depositions taken by magistrates, to be admitted at trial. (100) They are inadmissible if any party to the proceedings objects, (101) but this objection may be overridden "if the court considers it to be in the interests of justice so to order". (102) Thus, the trial judge has a discretion to prevent the statement or deposition from being used, (103) but no indication is given as to how this discretion should be exercised. These provisions were introduced after our consultation process had finished, but some of the points raised by respondents are relevant to their evaluation.

4.47 We have set out above our concerns about admissibility depending on judicial discretion. (104) We are therefore very concerned by the new provisions, which appear to give almost unfettered scope for the exercise of discretion. What is worse, it is quite feasible that statements or depositions will be adduced where there has been no cross-examination of a witness, even where the witness is not unavailable. Lord Williams of Mostyn, who has extensive experience of the criminal law, (105) said:

These provisions are too draconian. They take away from the defendant the right to cross-examine; they take away from the jury the possibility of assessing a witnesss demeanour. They may be necessary in some circumstances but one needs careful safeguards and one ought to limit that to specific and designated circumstances. (106)

4.48 Baroness Blatch, the Minister of State at the Home Office, responded by pointing out that "the interests of justice" was not a new test and was in no way different from the provisions of the Criminal Justice Acts 1925 and 1988. (107) She also said that the courts would turn for guidance to section 26 of the 1988 Act for assistance in applying the provision. (108)

4.49 Thus a new and major exception has been created to the hearsay rule. In spite of what the Minister said, there are no clear principles upon which the discretion should be exercised. Although it was suggested by the Minister that the exercise of the discretion could be reviewed by an appellate court, we do not believe this to be the case; as we have said, (109) the prosecution does not have the right of appeal, while the defence can challenge the exercise of discretion only in very limited circumstances.

4.50 We believe that these provisions have three major defects. First, they permit hearsay evidence even if the maker of the statement is able to give evidence. Second, there are no safeguards given to the opposing party, such as the right to challenge the statement or to seek to discredit its maker. Finally, there is total uncertainty as to how the courts will exercise their discretion. We will consider below how to deal with these provisions. (110) For present purposes we have to conclude that they constitute a major defect of the present law.

Statements of deceased persons

4.51 A number of different common law and statutory exceptions are available for the statements of deceased persons. A statement might be admissible under more than one exception (such as a written statement against pecuniary interest), (111) or none (such as an oral confession), (112) but there is no coherent rationale behind this collection of exceptions, and reliable evidence may be inadmissible.

4.52 The rationale for this common law exception was that no man "who is imminently going into the presence of his Maker, will do so with a lie on his lips". (113) Thus, "impending death acted as a substitute for the oath". (114) The narrow limits of the exception have been criticised extra-judicially by the former Lord Chancellor Lord Maugham, (115) who called for a substantial relaxation of the rule.

4.53 Apart from the dubious psychological foundation for the exception, and the difficulty of proving that the deceased had a settled hopeless expectation of death, the principal illogicality of this exception is its restriction to murder and manslaughter. (116) It does not apply to rape or armed robbery, but there is no logical justification for such a restriction. It is also out of step with the modern approach to res gestae, in which the emphasis is rightly on probative value. (117)

THE RULE LEADS TO A WASTE OF COURT TIME

4.54 This contention follows from the argument that the rule and its exceptions are unnecessarily complex. Much unnecessary time is spent deciding whether the rule applies and whether there are any relevant exceptions. If a party wishes to rely on section 23 or section 24 of the 1988 Act, much time has to be spent in deciding how the court should exercise its discretion under the provisions of sections 25 and 26. (118) As we said in the consultation paper, it may be that some laws have to be complicated in order to be just; but we did not believe this to be so in the case of the hearsay rule in its current form, because it is plain that for all its complexity it is neither rational nor just. (119)

4.55 This provisional conclusion was supported by the majority of respondents, with Judge Richard May emphasising "as an important drawback" the wastage of court time. We take on board the argument of the Wales and Chester Circuit that, whatever reforms are made, substantial arguments will be mounted on both sides: "difficult problems will not go away". Nevertheless, we still believe that it is a valid criticism of the present law on hearsay that it wastes court time.

THE RULE "OFTEN CONFUSES WITNESSES AND PREVENTS THEM FROM TELLING THEIR STORY IN THE WITNESS-BOX IN THE NATURAL WAY"(120)

4.56 The rule means that witnesses are interrupted in the course of narrating a series of events by being told that what they are about to say, or have said, is hearsay. (121) The CLRC considered this a valid criticism. (122) Wigmore thought the problem was so serious as to justify a major relaxation of the hearsay rule: he believed that witnesses should be allowed to make passing references to what other people had told them, subject to the right of either prosecution or defendants to have the original source of the statement summoned to give evidence if available.

4.57 On consultation, we were told by practitioners that this is much less of a problem than we had thought. For example, Ian Kennedy J explained that

We accept this point; but, insofar as there is a problem, the automatic admission of more first-hand oral hearsay would help to minimise it.

SUMMARY OF CRITICISMS OF THE RULE

4.58 The majority of respondents who dealt with it agreed with the summary set out in our consultation paper:

4.59 In the consultation paper the first option we considered was that there should be no change to the present law of hearsay. We rejected this option. (124) We now review the reasons for that view.

OPTION 1: NO CHANGE

4.60 We provisionally rejected the option of no change because of the numerous and serious defects of the hearsay rule. The rule and its exceptions are excessively complex, causing confusion, anomalies and wasted time, both for the court and for the parties. The rule results in the exclusion of cogent evidence, even where it is the defence that seeks to adduce it. The admission of hearsay often depends on the exercise of judicial discretion, which leads to inconsistency of decisions from one court to another and an inability to predict the decision in any given case. (125)

4.61 On consultation, the overwhelming majority of respondents who dealt with this point were in favour of reform, and this support came from a variety of sourcecs. Phillips LJ and Dyson J thought that the need for reform was urgent, while Wright J said that the consultation paper "makes an unarguable case for wholesale reform of the present law, and I agree with it unreservedly". Another presiding judge, Blofeld J, had "no doubt that the present system is indefensible". A similar view was taken by academic respondents such as Peter Mirfield, (126) by prosecuting authorities such as the Crown Prosecution Service, (127) and by JUSTICE. (128)

4.62 A small minority of respondents were satisfied with the present law: they included the Council of Circuit Judges (129) (who pointed out that they had only been able to get very limited responses from their members) and circuits such as the Wales and Chester Circuit. Having considered the arguments of those who think it preferable not to change the law, we believe that our analysis of the present laws defects is substantially unshaken. We conclude that the law needs to be changed.

4.63 The options for reform are set out in Part VI; but, before we consider them, we examine the implications of the Convention in Part V.

(10) For example, A confesses in writing to a murder for which B is put on trial. A is willing to give evidence for B, but dies before trial. Though not admissible under the rules relating to confessions, As confession is (subject to judicial leave) admissible as "documentary hearsay" under s 23 of the 1988 Act. But if A comes to court, and then refuses to say anything, claiming the privilege against self-incrimination, the earlier statement is not admissible in evidence. If A had come to court and there denied making the confession, or said that it was false, it might be a sensible result that the confession should be inadmissible: the hearsay account is trumped by evidence given directly to the court. But the out-of-court confession of someone who then refuses to speak at trial is, as such, no more and no less likely to be true than the out-of-court confession of someone who cannot give evidence because he or she is dead.

(11) Whether or not a confession by one accused may be adduced by the other was a question recently considered by the Court of Appeal in Myers [1996] 2 Cr App R 335. See para 8.93 below.

(14)A less strict line was taken by the Australian Supreme Court in Van Beelens Petition (1974) 9 SASR 163, where the court accepted the principle that where only one person could have committed a crime, evidence tending to show that it was not the accused but someone else who committed it is relevant (though it may still be inadmissible if it is hearsay).

(15)D J Birch, "Hearsay-Logic and Hearsay-Fiddles: Blastland revisited", Essays in Honour of J C Smith (1987) p 24.

(16)In the Scottish case of McLay v Her Majestys Advocate (1994) SCCR 397 the accused had been tried with H. H was acquitted. On appeal, the appellant wished to adduce evidence of confessions allegedly made by H which exculpated the appellant. If the appellant had known of the confession before the trial, it would have been admissible then, but it was not admissible at any rehearing of evidence after H ceased to be a party to the proceedings.

(18)Eg Cooper [1969] 1 QB 267, where a person who was not charged admitted to a friend that he had been the person who committed the assault. The confessor and the accused were similar in appearance. No objection was taken at trial to the friend recounting this admission in evidence. The jury nevertheless convicted the accused. The Court of Appeal had a lurking doubt about the conviction and allowed the appeal. See also Hails (unreported, 6 May 1976, CA) in which a youth with a mental age of 10 was convicted of the murder of a child (to which he had made a confession), but the conviction was quashed when it became known that a man who had been a witness at the trial had himself confessed to the murder. The facts of Hails are summarised by Roskill LJ in Wallace and Short (1978) 67 Cr App R 291, 297.

(21) The Court of Appeal held that Cooper (n 18 above) was "not a case of this Court acting on fresh or indeed inadmissible evidence". Of Hails (ibid) Roskill LJ said at p 297: "The whole of that case, in our view, proceeded on the footing not that the Court was dealing with a conviction to be quashed on inadmissible evidence, but with a conviction which it thought was unsafe and unsatisfactory because the doubts which must have already existed as to the weight which could properly be attached to a confession by a youth of intellectual immaturity, were reinforced when it was known that somebody else, whether truthfully or not, had confessed".

(22)JUSTICE, Miscarriages of Justice (1989) para 3.41, in a part of the report which considered cases such as Cooper (n 18 above) and Wallace and Short (para 4.12 above).

(23)We use this term to cover both people who have learning difficulties and those who have mental health problems.

(24)As happened in a recent case where four men accused of the gang rape of a schoolgirl were acquitted on the direction of the judge because the girl was too distressed to give evidence, despite screens being erected: The Times 31 March 1995.

(28) M McLean, "Quality Investigation? Police Interviewing of Witnesses" in A New Look at Eye-Witness Testimony (British Academy of Forensic Sciences, 1994). This study concluded that a large amount of information provided by witnesses to officers was not noted, and sometimes the statement contradicted what the witness had said. See also D Wolchover and A Heaton-Armstrong, "A Sounder System" The Independent 16 April 1997.

(30)This may, of course, be as much of a problem for the defence as for the prosecution: for example, a confession by a third party may be admissible under s 24 of the 1988 Act if it is written, subject to the courts discretion, but it will not be admissible at all if it is oral.

(31)Eg Carrington [1994] Crim LR 438. See also nn 32 and 33 below and para 10.21 below.

(34)Jones v Metcalfe [1967] 1 WLR 1286, 1291. Although s 24 of the 1988 Act may permit such evidence to be admitted, this does not prevent anomalies arising: eg Carrington (n 31 above), where a worker at a supermarket observed the number of a car, which she passed via an intermediary to a supervisor, who wrote it down. That written note was held to fall within s 24. Yet a note made by a friend or bystander would not have fallen within s 24, although there is no reason to think that it would have been any less useful to the court, or any less reliable.

(36) This expression is conventional, though misleading: see paras 7.7 7.8 below.

(38) Implied hearsay may of course be admissible if it falls within one of the exceptions to the hearsay rule, for example where it is part of the res gestae.

(39)See, eg, A Rein, "The Scope of Hearsay" (1994) 110 LQR 431; J R Spencer, "Hearsay, Relevance and Implied Assertions" [1993] CLJ 40; C Tapper, "Hearsay and Implied Assertions" (1992) 108 LQR 524.

(40)SLC Report, para 5.12. Cf Lord Browne-Wilkinson, in his dissenting speech in Kearley, at p 280: "Any action involving human activity necessarily implies that the human being had reasons and beliefs on which his action was based."

(42) See paras 7.13 7.16 below. It may also be difficult to identify an implied assertion where the words narrate a fact, but are also themselves an act. For example, A sends an eviction notice addressed to B. In the body of that notice it is recited that A is the landlord and B is the tenant and A requires B to leave. Could it be used as evidence that B resides at or is the tenant of that particular address? On one view it could be an item of real evidence, which happens to be in the form of words on paper. On another view it contains an implied assertion that B lives at the address; in that case it is hearsay and inadmissible, like a label which states the origin of goods: Patel v Comptroller of Customs [1966] AC 356.

(46)"I consider that the views expressed by the dissenting minority in Myers and by Lord Griffiths in Kearley are more in keeping with the Scottish approach": 1992 SLT 1010, 10161017, per Lord Hope.

(50)Thus in Saunders [1899] 1 QB 490 a conviction for obtaining by false pretences was quashed because in order to help prove that the accused had not carried on genuine business, a witness had been asked:

As has been pointed out in Andrews and Hirst on Criminal Evidence (2nd ed 1992) para 17.26, the questioning was clearly intended to circumvent the hearsay rule, which prevented the question: "What was said in answer to your inquiries?"

(53) Save in preparatory hearings in serious fraud cases: Criminal Justice Act 1987, s 9.

(54) Ward v James [1966] 1 QB 273, 293, per Lord Denning MR; R Pattenden, The Judge, Discretion and the Criminal Trial (1982) p 24.

(56) See s 32A of the 1988 Act, which is set out in Appendix B and is described in greater detail in paras 13.20 13.24 of the consultation paper.

(61)See paras 4.60 and 7.78 of the consultation paper. For example, in a case in 1993, a girl of 16 died of serious injuries deliberately inflicted on her. Before her death, she named the people who had caused them in taped interviews. Whether these tapes were admissible at the trial depended on the discretion of the judge. The tapes were admitted, and the defendants were convicted of murder and sentenced to life imprisonment: Dudson and others, The Times November and December 1993 (conviction reported 18 December).

(62) For the Court of Appeals attitude to a comparable approach by a judge to sentencing powers he disliked, see Scott (1989) 11 Cr App R (S) 249, 252, per Brooke J.

(64) See para 2.3 above and paras 2.5 2.7 and 2.13 2.19 of the consultation paper.

(71) Eg by Diplock LJ in Jones v Metcalfe [1967] 1 WLR 1286, 12901291 and Lord Reid in Myers v DPP [1965] AC 1001, 10191020.

(75) The CLRC observed that there was "little doubt that the majority of lawyers now favour substantial relaxation" of the rule: CLRC Evidence Report, para 234.

(76) In its evidence to the Royal Commission, the Home Office said that "the hearsay rule has significance for potential miscarriages of justice": Home Office Memoranda (1991) para 3.57.

(77) The rule and its exceptions are described as "a morass of authority and example, quite devoid of clear and consistent holding": p 571.

(78) Eg R W Baker writes in The Hearsay Rule (1950) p 168 that because of the rule "often valuable testimony is excluded: and injustice is caused".

(81) A Ashworth and R Pattenden, "Reliability, Hearsay Evidence and the Criminal Trial" (1986) 102 LQR 292. In Halpin (1975) 61 Cr App R 97, for example, the Court of Appeal decided that it was no longer necessary for a public document to be prepared by a public official from personal knowledge or in pursuance of a public duty to ascertain the accuracy of the facts; Kelsey (1981) 74 Cr App R 213 allowed the fiction of a memory-refreshing document to extend to a note which the witness had not personally checked, except by having it read back to him; Abadom (1982) 76 Cr App R 48 permitted facts which form the basis of an expert opinion to be used for the opinion without their being proved by anyone with direct knowledge of them; Muir (1983) 79 Cr App R 153 approved the practice where a manager repeated what his staff had claimed about the non-appearance of an entry on a record as evidence that something had not happened.

(82) See the consultation paper (and in particular Part IV) for commentary on, and Appendix B of this report for the text of, these statutory provisions.

(83) This is the effect of the present wording of section 24(1)(ii) which, when setting out the kind of document which comes within the general scope of section, stipulates that "the information contained in the document was supplied by a person (whether or not the maker of the statement) who had personal knowledge of the matters dealt with".

(84)P Plowden, "The Curates Egg Recollection and Hearsay" (1995) 59 J Crim L 62, 63. The question should be whether the original source of the information is unavailable to testify, or unable to remember, and it is wrong that the issue of admissibility should turn on the availability or powers of memory of the person to whom the original source reported the information rather than the original source itself. Neither the draftsman nor Parliament appears to have realised the incidental effect the drafting has on the identity of the person who must be unavailable or unable to remember. Professor Sir John Smith suggests that the phrase which is the cause of all the trouble "whether or not the maker of the statement" should be replaced by the phrase "whether or not the creator of the document": "Sections 23 and 24 of the Criminal Justice Act 1988: (1) Some Problems" [1994] Crim LR 426, 428.

(86) An illustration of this was the application by the defence to rely on the interviews of Fred West in the trial of Rosemary West at Winchester Crown Court in 1995.

(88) There is certainly no explicit requirement that the accused (or one of them) be connected in any direct way with the fear. The Divisional Court held in R v Tower Bridge Justices, ex p Lawlor (1991) 92 Cr App R 98 that it is sufficient to prove "that the witness is in fear as a consequence of the commission of the material offence or of something said or done subsequently in relation to that offence and the possibility of the witness testifying as to it": pp 1056, per Watkins LJ.

(90) In R v Ashford Justices, ex p Hilden [1993] QB 555 McCowan LJs interpretation was that a witness has not given oral evidence where he or she has not given evidence "of significant relevance" or "in no real sense did the evidence placed before the court go to decide the issues of fact in the case". Popplewell J, at p 562, preferred the interpretation that a witness who does not give further oral evidence through fear is a witness who does not give oral evidence through fear.

(92) Although Thompson (1976) 64 Cr App R 96 (CA) indicates that a witness who refused to answer questions could be treated as hostile under the common law, the better view probably is that the Criminal Procedure Act 1865, s 3, does not apply, and the 1988 Act, s 23, now does.

(93) Criminal Procedure Act 1865, s 3. A hostile witness is one who does not appear to want to tell the truth.

(98) Professor Peter Murphy suggested that a statement be admitted where the attendance of the declarant "cannot be procured by compulsory process or other means which the court considers reasonable".

(108) Ibid, col 952. Lord Williams of Mostyn and Lord McIntosh of Haringey appeared dissatisfied and the latter invited the Government to reconsider the matter when it was remitted to the Commons: see cols 950 and 952.

(111) Admissible at common law (Rogers [1995] 1 Cr App R 374) or under s 23 of the 1988 Act.

(112) Statements against penal interest are outside the common law exception of statements against interest (Sussex Peerage Case (1844) 11 Cl & Fin 85; 8 ER 1034), and if the statement is oral s 23 of the 1988 Act will not apply.

(115) "Observations on the Law of Evidence with Special Reference to Documentary Evidence" (1939) 17 Can Bar Rev 469, 483.

(116) Mead (1824) 2 B & C 605, 107 ER 509; Hutchinson (1822) 2 B & C 608, 107 ER 510(a).

(120)Law Reform Committees 13th Report, Hearsay Evidence in Civil Proceedings (1966) Cmnd 2964, para 40.

(122)CLRC, Evidence Report, para 228, adopting the words of the Law Reform Committee cited at the head of this paragraph.

(123)Para 7.84 of the consultation paper. The passage concludes that the admission or exclusion of hearsay evidence might result in the Strasbourg Court concluding that an accused had not had a fair trial. The implications of the Convention are considered in the next Part.

(126)"I do think the case for some relaxation of the hearsay rule in criminal cases is made out."

(127)"The hearsay rule is excessively complex and leads to confusion and anomalous results. The rule could sensibly be reformed for these reasons alone."

(129) "We are concerned that the basic rule against hearsay should remain. We have serious reservations about either the necessity or desirability to alter the existing exceptions to the general rule. To do so would, in our view, make an already complicated but workable system yet more complicated."

The Law Commission