Hearsay in English law

History of the rule

The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century. The issues were analysed in substantial detail in "Wright v Doe d Tatham" [(1837) 7 Ad & El 313] . The technical nature of the discussion in "Doe d Tatham" inhibited much reasoned progress of the law, whose progress (in the form of judicial capacity to reform it) ended not long afterwards. ["Sugden v Lord St Leonards" (1876) 1 PD 154; see also "Sturla v Freccia", below] Later attempts to reform through the common law it got little further, with Lord Reid in "Myers v DPP" [1965] AC 1001 at 1021] saying

"If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty. If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of parts of the existing law of hearsay susceptible of similar treatment, ... The only satisfactory solution is by legislation following on a wide survey of the whole field ... A policy of make do and mend is not appropriate."

There was some statutory reform in the nineteenth century (see Bankers' Books Evidence Act), and later the Evidence Act 1938 made some further if cautious reforms. The state of the hearsay rules were regarded as 'absurd' by Lord Reid and Lord Diplock. ["Jones v Metcalfe" [1967] 1 WLR 1286 at 1291]

The Law Commission [13th Report of the Law Reform Committee Cmnd 2964 (1966), para 11] and Supreme Court committee [Report of the Committee on Supreme Court practice and procedure, Cmnd 8878 (1953)] provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972.

The Criminal Justice Act 2003 ("2003 Act"), which went into force on 4 April 2005, introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the Law Commission in [http://www.lawcom.gov.uk/docs/lc245.pdf Evidence in Criminal Proceedings: Hearsay and Related Topics] (LC245), published on 19 June 1997.Previously, the Criminal Justice Act 1988 had carved out exceptions to the hearsay rule for unavailable witnesses and business documents. These were consolidated into the 2003 Act. See: [http://www.wikicrimeline.co.uk/index.php?title=Hearsay_evidence WikiCrimeLine Hearsay evidence]

Reasoning behind the rule

The reasoning process behind the hearsay rule can be seen by comparing the acceptance of direct evidence and hearsay. In adducing direct evidence (that is, recollection of a witness in court) the court will consider how he would have perceived the event at the time, potential ambiguities and the witness's sincerity. These can be tested in cross-examination. A hearsay statement may duplicate each of these uncertainties (firstly for the absent original witness, secondly for the one in court), and cross-examination of the original witness is impossible.

Although the rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence: [Thayer, "Legal Essays", 1907]

"the hearsay rule operates in two ways: (a) it forbids using the credit of an absent declarant as the basis of an inference, and (b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such and such circumstances."

The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has sometime led to misunderstandings about the nature of hearsay. ["R v Olisa" [1990] Crim LR 721]

A different rationale can be found in the requirement of justice that the accused is entitled to face his or her opponents. This principle finds support in the European Convention on Human Rights ( [http://www.opsi.gov.uk/acts/acts1998/80042--d.htm#5 articles 6(1) and 6(3)(d)] ) and, in the United States the sixth amendment of its Constitution (its principles tracing back to "Raleigh's Trial" [2 St Tr 15] ).

Civil proceedings

Hearsay is generally admissible in civil proceedings. [Civil Evidence Act 1995, UKStatute|1933353|s. 1.]

The law concerning hearsay in civil proceedings was reformed substantially by the Civil Evidence Act 1995 [ [http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950038_en_1.htm 1995 c. 38] ] ("the 1995 Act") and is now primarily upon a statutory footing. The Act arose from a report of the Law Commission published in 1993 ["The Hearsay Rule in Civil proceedings" (LC216), Cm 2321 (1993)] which criticised the previous reforming statutes' excessive caution and cumbersome procedures. Section 1 of the Act says

"In civil proceedings evidence shall not be excluded on the ground that it is hearsay"

This includes hearsay of multiple degree (that is, hearsay evidence of hearsay evidence: for example "Jack told me that Jill told him that she went up the hill").

Other provisions of the 1995 Act preserve common law rules relating to public documents, published works of a public nature and public records. [ [http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950038_en_2.htm#mdiv7 Civil Evidence Act 1995, s.7(2)] ] The common law in respect of good and bad character, reputation or family tradition is also preserved. ["ibid" s.7(3)]

The Act moves some of the focus of hearsay evidence to weight, rather than admissibility, setting out considerations in assessing the evidence (set out in summary form): [ [http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950038_en_2.htm#mdiv4 Civil Evidence Act 1995, s.4(2)] ]
* reasonableness of the party calling the evidence to have produced the original maker
* whether the original statement was made at or near the same time as the evidence it mentions
* whether the evidence involves multiple hearsay
* whether any person involved had any motive to conceal or misrepresent matters
* whether the original statement was an edited account, or was made in collaboration with another, or for a particular purpose
* whether the circumstances of the hearsay evidence suggest an attempt to prevent proper evaluation of its weight

Criminal proceedings

tatutory definition

The Criminal Justice Act 2003 defines hearsay as statements "not made in oral evidence in the proceedings" being used "as evidence of any matter stated". [Criminal Justice Act 2003, UKStatute|903072|s. 114.]

General rule

tatutory exceptions

Unavailable witnesses

Evidence of a witness may be read in court if he or she is unavailable to attend court. [ [http://www.opsi.gov.uk/acts/acts2003/30044--m.htm#116 Criminal Justice Act 2003, s.116] , formerly in the [http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880033_en_3.htm#mdiv23 Criminal Justice Act 1988, s.23] ]

In order to be admissible, the evidence referred to would have to have been otherwise admissible, and maker of the statement identified to the court's satisfaction. Additionally, the absent person making the original statement must fall within one of five categories:
* he or she is dead
* he or she is unfit to be a witness because of his bodily or mental condition
* he or she is outside the United Kingdom and it is not reasonably practicable to secure his or her attendance
* he or she cannot be found although such steps as it is reasonably practicable to take to find him or her have been taken
* that through fear he or she does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement

In the case of absence through fear, some additional safeguards are impose prior to the statement's admission. The court must be satisfied it is in the interests of justice, particularly considering the statements contents, whether special measures (screens in court, or video live-link) would assist, and any unfairness to the defendant in not being able to challenge the evidence.

A party to the proceedings (that is, either the prosecution or defence) who causes any of the above five conditions to occur in order to stop a witness giving evidence cannot then adduce the hearsay evidence of it.

The scope of this rule has undergone consideration in cases when much of the prosecution case involves evidence by a witness who is absent from court. In "Luca v Italy" [(2003) 26 E.H.R.R. 46, European Court of Human Rights] it was held that a conviction solely or decisively based upon evidence of witnesses which the accused has had no opportunity to examine breached Article 6 of the Convention (right to a fair trial). However in "R v Arnold" [ [2004] 6 Archbold News 2, Court of Appeal] it was said this rule would permit of some exceptions, otherwise it would provide a licence to intimidate witnesses - though neither should it be treated as a licence for prosecutors to prevent testing of their case. Each application had to be weighed carefully.

Business documents

Documents created in the course of a trade, occupation, profession or public office (referred to as "business") can be used as evidence of the facts stated therein. [ [http://www.opsi.gov.uk/acts/acts2003/30044--m.htm#117 Criminal Justice Act 2003, s.117] , formerly in the [http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880033_en_3.htm#mdiv24 Criminal Justice Act 1988, s.24] ]

To be admissible, the evidence referred to in the document must itself be admissible. The person supplying the information must have had personal knowledge of it (or be reasonably supposed to have had), and everyone else through whom the information was supplied must have also been acting in the course of business.

If the business information was produced in the course of a domestic criminal investigation, then either one of the above five categories (for absent witnesses) must apply, or the person producing the statement cannot be expected now to have any recollection of the original information. A typical example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial. Previous criminal records can be adduced (if otherwise admissible) under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge. ["R v Humphris", 169 J.P. 441, Court of Appeal]

Previous consistent and inconsistent statements

Sometimes during the testimony of a witness, the witness may be questioned about statements he previously made outside court on an earlier occasion, to demonstrate either that he has been consistent or inconsistent in his account of events. The Act did not change the circumstances in which such statements could become admissible in evidence (which are still prescribed in the Criminal Procedure Act 1865), but it did change the evidential effect of such statements once admitted. Formerly, such statements were not evidence of the facts stated in them (unless the witness agreed with them in court): they only proved that the witness had kept his story straight or had changed his story, and so were only evidence of his credibility (or lack of it) as a witness. They were not hearsay. Under the 2003 Act, however, such statements are now themselves evidence of any facts stated in them, not just of credibility, and so are now hearsay.

Preserved common law exceptions

[http://www.opsi.gov.uk/acts/acts2003/30044--m.htm#118 Section 118 of the 2003 Act] preserved the following common law rules and abolished the remainder:
* Public information as evidence of the facts stated therein:
** published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps)
** public documents (such as public registers, and returns made under public authority with respect to matters of public interest)
** records (such as the records of certain courts, treaties, Crown grants, pardons and commissions)
** evidence relating to a person's age or date or place of birth may be given by a person without personal knowledge of the matter
* Reputation as to character - evidence of a person's reputation is admissible for the purpose of proving his good or bad character
* Reputation or family tradition - evidence of reputation or family tradition is admissible to prove or disprove (and only so far as it does so):
** pedigree or the existence of a marriage (or civil partnership following the Civil Partnership Act 2004)
** the existence of any public or general right
** the identity of any person or thing
* Res gestae - statements are admissible if:
** the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
** the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
** the statement relates to a physical sensation or a mental state (such as intention or emotion).
* Confessions - all rules relating to the admissibility of confessions or mixed statements
* Admissions by agents etc as evidence of facts stated:
** an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
** a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.
* Common enterprise - a statement made by a party to a common enterprise is admissible against another party to the enterprise
* Expert evidence

Agreement

Hearsay evidence is permitted by agreement between "all" parties in the proceedings. [ [http://www.opsi.gov.uk/acts/acts2003/30044--m.htm Criminal Justice 2003, s.114(1)c)] ] No such provision existed before the coming into force of the 2003 Act.

Interests of justice

There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In "Sparks v R" [ [1964] AC 964, appeal from the Supreme Court of Bermuda] a U.S. airman was accused of indecently assaulting a girl just under the age of four. Evidence that the four year old victim (who did not give evidence herself) had told her mother "it was a coloured boy" was held not to be admissible (not being "res gestae" either) against the defendant, who was white. In "R v Blastland" [ [1986] AC 41] the House of Lords held in a murder case that highly self-incriminating remarks made by a third party, not at the trial, could not admitted in evidence (the remarks mentioning the murder of a boy whose body had not yet been independently discovered).

Under the 2003 Act, any hearsay evidence whether or not covered by another provision may be admitted by the court if it is "in the interests of justice" to do so. [ [http://www.opsi.gov.uk/acts/acts2003/30044--m.htm#114 Criminal Justice 2003, s.114(1)(d)] ] This provision is sometimes known as the "safety valve".

The Act sets out criteria in determining whether the interests of justice test are met though other considerations can be taken into account:
* how much probative value (that is, use in determining the case) the statement has (assuming it to be true), or its value in understanding other evidence
* what other relevant evidence has or can be given
* its importance in the context of the case as a whole
* the circumstances in which the statement was made
* how reliable the maker of the statement appears to be
* how reliable the evidence of the making of the statement appears to be
* whether oral evidence of the matter stated can be given and, if not, why not
* the difficulty involved in challenging the statement
* the extent to which that difficulty would be likely to prejudice the party facing it

References

External links

* [http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950038_en_1.htm Civil Evidence Act 1995]
* Criminal Justice Act 2003: [http://www.opsi.gov.uk/acts/acts2003/20030044.htm as enacted] , [http://www.statutelaw.gov.uk/legResults.aspx?activeTextDocId=902928 as amended] .
* [http://www.wikicrimeline.co.uk/index.php?title=Hearsay_evidence WikiCrimeLine Hearsay evidence]