Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(1) (19 June 1997)

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TO THE RIGHT HONOURABLE THE LORD IRVINE OF LAIRG, LORD HIGH CHANCELLOR OF GREAT BRITAIN

PART I

INTRODUCTION AND SUMMARY OF PRINCIPAL RECOMMENDATIONS

THE BACKGROUND TO THIS PROJECT

1.1 On 28 April 1994 the Secretary of State for Home Affairs made a reference to the Commission in the following terms:

to consider the law of England and Wales relating to hearsay evidence (1) and evidence of previous misconduct (2) in criminal proceedings; and to make appropriate recommendations, including, if they appear to be necessary in consequence of changes proposed to the law of evidence, changes to the trial process.

1.2 This reference was made pursuant to a recommendation by the Royal Commission on Criminal Justice, which considered the law on hearsay in criminal cases to be "exceptionally complex and difficult to interpret". (3) The Royal Commission advocated major reform when it concluded that

in general, the fact that a statement is hearsay should mean that the court places rather less weight on it, but not that it should be inadmissible in the first place. We believe that the probative value of relevant evidence should in principle be decided by the jury for themselves, and we therefore recommend that hearsay evidence should be admitted to a greater extent than at present. We think that before the present rules are relaxed in the way that we would like to see, the issues need thorough and expeditious exploration by the Law Commission. (4)

1.3 We welcomed this reference because there has been much criticism of the law of hearsay. Indeed, in a leading case, Lord Reid said that it was "difficult to make any general statement about the law of hearsay evidence which is entirely accurate". (5) In that case, the majority of the House of Lords (6) put an end to piecemeal changes to the law of hearsay when they held that no further judicial development of the exceptions to the law of hearsay was permissible and that further correction was to be left to the legislature, partly on constitutional grounds and partly on the pragmatic ground that any change should be comprehensive. (7)

OUR APPROACH

1.4 The Scottish Law Commission has said that the following principles should underlie any reform of the hearsay rule:

1.5 We agree; we would add that we take "relevant" to mean "logically probative of some matter requiring to be proved". (10) In addition, we believe that evidence should not be admitted if a jury or magistrates cannot be given an effective warning about the weight that can be given to it. As we shall show, there are difficulties in deciding whether an item of hearsay evidence is probative and, above all, whether juries and magistrates are capable of safely appraising hearsay evidence in the light of its limitations.

THE NEED FOR CODIFICATION OF THE LAW OF EVIDENCE

1.6 This Commission has a statutory duty to keep the whole of the law under review "with a view to its systematic development and reform, including generally the simplification and modernisation of the law". (11) We believe (12) that codification of the law in criminal proceedings is important for two reasons. The law controls the exercise of state power against citizens, and provides protection for citizens from unfair convictions, and it is important that its rules should be determined by Parliament and not by the sometimes haphazard methods of the common law. Secondly, if the law is stated in clear and accessible terms, then not only will justice be administered more efficiently and consistently, but it will be comprehensible to citizens, whether witnesses, victims, fact-finders or defendants.

1.7 In 1985 the Code team (13) proposed that there should be a Criminal Code which would eventually embrace as much as is practicable of the whole of the law relating to the criminal process. (14) They envisaged that Part III of the Code would cover evidence and procedure. In a report published in 1989 the Commission recommended that there should be such a Code. (15) The Bill appended to that report, although it could be enacted on its own, could be the first step towards Part III of the Code.

1.8 There are at least four reasons why it is particularly desirable to simplify and modernise the law relating to the admissibility of hearsay evidence in the criminal courts.

1.9 First, an objection to a questionable piece of evidence may have to be taken by an advocate on the spot and without prior notice; it will then have to be argued by the opposing advocate before being immediately ruled upon by the judge or magistrates, without in many cases any real opportunity to consider the authorities. Secondly, unlike in civil cases, no interlocutory appeal (16) on issues relating to the admissibility of hearsay evidence is generally available, (17) so if a judges ruling is wrong this may lead to the quashing of a conviction, (18) and possibly an order for a new trial, (19) with the potential loss of liberty and the additional expense that this may involve. (20)

1.10 Thirdly, if it is not certain what evidence would be admissible at trial, then cases may be pursued by the prosecution only to collapse after a ruling on the evidence, or advocates may advise their clients to plead not guilty, whereas if the law were clear they would not have given such advice. Finally, judges ought to be able to give directions about the rules of evidence to be applied in terms which juries can readily understand and accept as reasonable. (21) By the same token the law must also be easy for magistrates to understand and apply, and, as far as possible, for all lay people involved in the criminal justice process to understand.

1.11 We therefore believe that if a comprehensive and comprehensible law of hearsay were to be brought into force, there would be far less scope for argument at trial. It would also make it much easier for the law to be explained to the fact-finders whether lay magistrates or juries who play such a large part in the criminal justice system, and for them to apply it. This point is significant as a large proportion of the judiciary appointed to hear criminal cases fulfil that function only on a part-time basis. (22)

1.12 The law of hearsay should be comprehensive, and this means that the extent of the rule, as well as all exceptions to it, should be embodied in the relevant statutory provisions. At present there are numerous common law exceptions (23) and we believe that, as far as possible, they should be clearly set out within one statute.

1.13 The same reasoning applies to the use of previous statements made by a person who is called to give evidence in criminal proceedings. There are defects in the common law rules, (24) and we seek not only to reform those rules but also to state clearly their extent.

1.14 Our aim has been to produce a single Bill which contains the rules on the admissibility of hearsay evidence (including previous statements of witnesses) and all exceptions, whether arising originally at common law or by statute; but, where we have concluded that existing common law or statutory exceptions should be retained without amendment, we have not sought to restate them in the Bill, but merely to preserve them.

THE PROVISIONAL PROPOSALS IN THE CONSULTATION PAPER

1.15 In 1995, the consultation paper Evidence in Criminal Proceedings: Hearsay and Related Topics, (25) referred to in this report as "the consultation paper", was published. In that paper we provisionally proposed a new formulation of the hearsay rule to include all that is presently within its ambit, except "implied assertions". (26) We provisionally concluded that there should be categories of automatically admissible hearsay evidence which would cover cases where the witness is dead or too ill to attend court, or cannot be found, (27) and where the witness refuses to give or to continue giving evidence though physically present in court. (28) We also provisionally proposed that certain statutory provisions should be preserved, albeit with amendments. (29)

1.16 Experience has shown that it is quite likely that some unforeseeable cases of cogent hearsay evidence might fall outside the categories of automatic admissibility, however carefully drafted they were. We therefore provisionally proposed that there should be an additional limited inclusionary discretion (with the discretion clearly defined), so as to avert possible injustice, and we referred to this as the "safety-valve". (30)

1.17 Our provisional view was that the party against whom the hearsay evidence was being adduced should be adequately protected by a series of safeguards. The first safeguard was that the automatically admissible categories could not be used where the person tendering the statement had caused the unavailability of the witness. (31) Secondly, we were anxious to ensure that the person against whom the hearsay evidence would be admissible has as much notice as possible: our provisional view was that where possible, the application to admit such a statement should be made before trial and, where this is not possible, at the start of a trial. (32) We also provisionally proposed that the burden of proof should rest on the party that tenders the evidence. (33) Thirdly, we believed that if a hearsay statement is admitted, the person against whom it is used should be entitled to show that it is inaccurate or to cast doubt on the reliability of the maker of the statement. (34)

1.18 We provisionally proposed that, in order to ensure compliance with the European Convention on Human Rights ("the Convention"), where the evidence of a particular element of the offence included hearsay, that element should not be regarded as proved unless the hearsay was supported by direct evidence. (35) This provisional view was criticised by our consultees and, as we shall explain, we are now satisfied that this requirement is unnecessary. (36)

1.19 We provisionally proposed that where previous statements of witnesses are admitted, they should be treated as evidence of their truth, and not just as bearing on credibility. (37)

1.20 With regard to computer evidence, we proposed the repeal of section 69 of PACE which, in essence, provides that a document produced by a computer may not be adduced as evidence of any fact stated in the document unless it is shown that the computer was properly operating and was not being improperly used. (38)

1.21 Finally, we proposed that information relied upon by an expert should be admissible not only where it is admissible at present, or would be admissible under any of the hearsay exceptions we proposed, but also where it is provided by a person who cannot be expected to have any recollection of the matters stated. (39)

THE CONSULTATION PROCESS

1.22 We received a very large number of responses and we are particularly grateful for the assistance and efforts of our consultees. This is a subject where the practical experience of the judiciary and practitioners has been particularly valuable. We have benefited greatly from their views. A list of the respondents appears in Appendix C.

1.23 We organised a seminar ("the February seminar") which was held at the New Connaught Rooms, London, on 10 February 1996, at which a number of difficult issues thrown up on consultation were considered. Brooke LJ, our former chairman, kindly chaired the seminar. A list of those attending appears in Appendix D. The Criminal Law Committee of the Judicial Studies Board allowed the Commissioner with special responsibility for criminal law to lead very useful discussions on certain problematic areas at its seminars for the Crown Court Judiciary held at Creaton in March 1996 and at Cheltenham in April 1996. We are grateful to all who participated in these seminars for their help.

1.24 The responses to the consultation paper supported most of our provisional conclusions. The general view was that the current regime is unnecessarily complex, arbitrary in its effects and undiscriminating in nature. It was accepted that the exceptions to the rule are unclear in their scope, and the statutory rules too dependent on discretion in their operation.

1.25 Many judges and practitioners were concerned that many witnesses are understandably confused by and dissatisfied with the present regime, particularly when it operates to prevent them from giving evidence which they rightly regard as relevant and cogent. In the context of hearsay, the Court of Appeal (40) recently pointed out that if rules of evidence are difficult for non-lawyers to understand or accept, this will eventually lead to a loss of public confidence in the criminal justice system. The great importance of maintaining that confidence is another reason to re-examine the rule and its operation in practice.

1.26 We are greatly indebted to Professor Diane Birch, Professor of Criminal Justice and Evidence at the University of Nottingham, who acted as our consultant for this report. We also benefited from exchanges of information and ideas with Sheriff Iain MacPhail QC, who was until 1 January 1995 the Criminal Law Commissioner at the Scottish Law Commission, from whose report on hearsay (41) we have learnt much.

DEVELOPMENTS SINCE THE PUBLICATION OF THE CONSULTATION PAPER

1.27 There have been two major developments since the consultation paper was published. First, an important new statutory exception to the hearsay rule was created in Schedule 2 to the Criminal Procedure and Investigations Act 1996, which permits evidence of depositions and written statements used in committal proceedings to be adduced at the subsequent trial if that is "in the interests of justice", against the objection of the opposing party. This exception gives a wide and apparently unfettered discretion to the trial judge, but no governing principles are set out in the 1996 Act. We recommend the repeal of this new exception. (42)

1.28 The second development has been the resolution by the Court of Appeal in Myers (43)of the conflict of authority between Beckford and Daley (44) and Campbell and Williams: (45) the court preferred the latter. The particular point at issue, namely whether one co-defendants confession may be adduced by another, has therefore been settled; (46) but the problem illustrated by Beckford and Daley persists. Where the hearsay rule and its exceptions operate to exclude cogent evidence which tends to show that the accused is not guilty, there is still the danger of a miscarriage of justice which only the Court of Appeal can remedy, and then only after the defendant might have been deprived of his or her liberty and much public money wasted. (47)

SUMMARY OF PRINCIPAL RECOMMENDATIONS

1.29 Our basic philosophy is that oral evidence is preferable to hearsay, principally because in the former case the witness can be cross-examined. First-hand hearsay is, in turn, preferable to multiple hearsay, because of the risk of manufacture and the errors that may be introduced by repetition. We are satisfied that the discretion provisions in the Criminal Justice Act 1988 have not worked satisfactorily: for example, many judges are consistently refusing to exercise their discretion to admit evidence under that Act. Uncertainty as to the admissibility of evidence means that the prosecution cannot confidently assess the prospects of a conviction in deciding whether to prosecute, and if so on what charges; and those acting for the defendant cannot confidently advise on the plea or on the conduct of the defence. Our concerns on this issue were confirmed on consultation.

1.30 We therefore recommend that there should continue to be an exclusionary hearsay rule, to which there would be specified exceptions, plus a discretion to admit hearsay evidence which would otherwise be inadmissible where this is in the interests of justice. (48)

1.31 Hearsay adduced by the prosecution would continue to be subject to the general power to exclude prosecution evidence, either at common law or under section 78 of the Police and Criminal Evidence Act 1984 ("PACE"). (49) Evidence of no probative value would, as now, be excluded as irrelevant; but we have also been concerned about the possibility of a party seeking to adduce hearsay of very low probative value which would lead to a substantial waste of court time. (50) We believe that the court should have power to refuse to admit such evidence where it is satisfied that the probative value of the evidence is substantially outweighed by the danger that it would result in undue waste of time if admitted.

The rule against hearsay

1.32 We recommend a statutory formulation of the rule against hearsay. (51) Our formulation would mean that any statement not made in oral evidence in the proceedings is inadmissible if it is adduced as evidence of any matter stated; but a matter is "stated" only if it appears to the court that the purpose, or one of the purposes, of the person making the statement was to cause another person to believe the matter, or to cause another person to act, or a machine to operate, on the basis that the matter is as stated. Thus the rule would not preclude evidence of "implied assertions" by persons whose words or conduct are not intended to communicate any information at all.

1.33 We believe that it is also necessary to have a rule governing statements which are not made by a person but depend for their accuracy on information supplied by a person, and that such a statement should not be admissible as evidence of any fact contained in it unless the information on which it is based is proved to have been accurate. (52)

Automatically admissible hearsay

1.34 We believe that there should be three separate categories of automatic admissibility.

Unavailability of declarant

1.35 The first category of automatically admissible hearsay is hearsay which is the best evidence available, because the declarant is not available to give oral evidence. This category includes a first-hand hearsay statement made by an identifiable person who is unavailable to give oral evidence because he or she

A party would not be allowed to adduce hearsay evidence in any of the above cases where that party had deliberately caused the unavailability of the declarant in order to prevent him or her from testifying. (56)

Reliable hearsay

1.36 The second category of automatic admissibility would apply where the hearsay material has come into being in such circumstances that it is sufficiently reliable to be admissible. An example is "business documents", namely documents created or received by a person in the course of a trade, business, profession or other occupation or as the holder of a paid or unpaid office. (57) This recommendation would amount to an improved version of s 24 of the 1988 Act, but would make the admission of the evidence automatic and not dependent on judicial discretion. However, we recommend that the court should have a power to direct that a document is not to be admissible as a business document where, although it would otherwise qualify as a business document, it does not appear to be reliable as evidence of its contents. (58)

1.37 An additional instance of this category is that branch of the res gestae exception under which a statement made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded is admissible. (59) Apart from these, there are the other branches of the res gestae exception (namely where an act is accompanied by a statement in such circumstances that the act can be properly evaluated as evidence only if considered in conjunction with the statement, (60) and where the statement relates to a physical sensation or mental state), (61) and various other common law exceptions which can conveniently be preserved. (62)

Admissions and confessions

1.38 The final category of automatic admissibility is admissions and confessions, subject to the existing statutory safeguards. (63) Such evidence would continue to be admitted on the general assumption that what a person says against his or her own interests is likely to be true.

Hearsay admissible at the discretion of the court

The safety-valve

1.39 We are conscious that however much thought goes into defining the limits of the automatic categories, some unforeseeable instances of very cogent hearsay will fall outside them. We therefore recommend a limited inclusionary discretion (a "safety-valve") to admit hearsay where the court is satisfied that, despite the difficulties in challenging the statement, its probative value is such that the interests of justice require it to be admissible. (64)

Frightened witnesses

1.40 The second category of hearsay admissible at the courts discretion is that of frightened witnesses. It was clear from the responses to the consultation paper that the reluctance of witnesses to testify, because they are frightened of what will happen to them if they do, is a significant problem. We decided that there should be an exception where the witness does not give (or stops giving) evidence through fear. We did not think that an automatic exception was appropriate, as it might enable dishonest witnesses to give a statement and then claim to be frightened so as to avoid being cross-examined; we therefore recommend that the leave of the court must be obtained before the statement of a frightened witness is admissible. (65) The court would consider the relevant circumstances, and admit the statement only if satisfied that it ought to be admitted in the interests of justice. (66)

1.41 After much discussion, we decided not to specify in the legislation all the kinds of fear that would suffice, but instead to make it clear that "fear" is to be widely construed and includes, for example, fear of injury to another, or of financial loss. Obviously the nature of the fear would be one of the factors that the court would take into consideration when deciding whether to grant leave. A statement would not need to have been made to a police officer (67) to be admissible.

Experts assistants

because of the rules on hearsay evidence, an expert witness may not, strictly speaking, be permitted to give an opinion in court based on scientific tests run by assistants unless all those assistants are called upon to give supporting evidence in court. It seems to us that this rule is badly in need of change. (68)

1.43 In order to reduce the problem of experts assistants being required to attend court for cross-examination where the other party has nothing to put to them that could not equally have been put to the expert, we recommend that the rules on the giving of advance notice of an intention to adduce expert evidence should be extended so as to require advance notice of the names of any persons who have supplied information on which the expert will rely, and the nature of that information in each case. (69) We further recommend that, where such notice has been given, a new hearsay exception should enable the expert witness to base any opinion or inference on any information supplied by any such person of which that person could have given direct oral evidence, and that any information so relied upon should be admissible as evidence of its truth, unless the court directs otherwise on application by any other party to the proceedings. (70) The onus would thus be on the party seeking to cross-examine the assistant to persuade the court that the assistants attendance is necessary.

Previous statements of witnesses

1.44 We now turn to the case where witnesses are present at court and can be cross-examined. This fact offers greater scope for the admission of a witnesss previous statements, although they are technically hearsay, than where the maker of the hearsay statement is absent and cannot be cross-examined. We believe that a previous statement of a witness should be admitted either where it falls within one of the above exceptions to the hearsay rule (for example, res gestae) or

In each of these cases the statement would be evidence of the matters stated in it.

1.45 Such statements would frequently be in written form, and, if admissible, would therefore be exhibits. Normally this would mean that the jury would take the statements with them when they retire, and they might attach greater weight to these written statements than to the evidence given orally. We believe that this would be undesirable, because the emphasis on the oral evidence might be weakened. We therefore recommend that the written statements should not accompany the jury when they retire to consider their verdict, unless all the parties agree or the court considers it appropriate. (74)

1.46 We believe that a previous statement by a witness should also be admissible where the witness does not, and cannot reasonably be expected to, remember the matters stated well enough to give oral evidence of them, provided that it was made when the events were fresh in his or her memory and the witness testifies that to the best of his or her belief that statement was true. (75) The previous statement could be proved by oral evidence from someone who heard it being made, or, where it was recorded, by producing the record (or a copy of it). The statement would then be admissible as evidence of its truth.

Previous inconsistent statements

1.47 When previous inconsistent statements by witnesses are admitted, we believe that they should be treated as evidence of the facts stated in them, provided that oral evidence of those facts by the witness would be admissible. (76)

Safeguards for the party against whom hearsay is adduced

1.48 We believe it is important that certain additional (77) safeguards should be given to the party against whom the hearsay evidence is admitted or is to be admitted. These safeguards are as follows. First, the nature of our exceptions means that there is built-in protection: hearsay would not be permitted where the declarants oral evidence was available, or where the declarant was unidentified, except in the case of business documents, res gestae, and evidence admitted under the safety-valve.

1.50 However, we have concluded that (contrary to the view expressed in the consultation paper) there is no need, under the Convention or otherwise, to introduce a rule that an essential element of an offence cannot be proved by uncorroborated hearsay.

Computer evidence

1.51 We recommend the repeal of section 69 of PACE, which in essence provides that a document produced by a computer may not be adduced as evidence of any fact stated in the document unless it is shown that the computer was operating properly and was not being used improperly. (82)

Other matters

1.52 We recommend that (subject to the existing discretions to exclude prosecution evidence, and to the difference in the standard of proof) the same rules of evidence should apply to the defence and to the prosecution. (83)

1.53 We recommend that our reformed hearsay rule should apply in places where the criminal rules of evidence currently apply, including courts-martial and professional tribunals established by statute. (84)

Financial implications of our recommendations

1.54 It is of course very difficult to predict precisely the financial implications of our recommendations, and we do not have the resources to carry out costings; but we believe that they would save public money in a number of different ways.

1.55 First, the scope for legal argument about the admissibility of hearsay evidence would be much reduced because, we believe, the demarcation between hearsay and non-hearsay would be clearer, (85) and because much evidence which is currently admissible only with the leave of the court would be automatically admissible. (86)

1.56 Secondly, it is likely that some cases would be resolved at an earlier stage. At present, prosecutions have to be abandoned if the judge rules, in the exercise of his or her discretion, that important prosecution evidence is inadmissible. Defendants may plead not guilty in the hope that this will occur, but if the judge rules in favour of the prosecution they have to change their pleas. If there is greater certainty about what evidence will be admitted, there should be fewer aborted trials.

1.57 Thirdly, our recommendation that section 69 of PACE should be repealed would mean that less time would be spent receiving evidence about the operation of a computer where there is no reason to doubt that it was working properly. (87)

1.58 Finally, our recommendations in respect of expert evidence might well lead to a reduction in the pointless cross-examination of experts assistants.

THE STRUCTURE OF THIS REPORT

1.59 In Part II we start with a summary of the present law. In Part III we revisit the justifications for the hearsay rule and its exceptions. In Part IV we set out the defects of the current law. In Part V we consider the effect of the Convention, and in Part VI we review the options for reform in the light of the responses on consultation.

1.60 In Parts VII to XIII we set out in detail our recommendations for reform. We start in Part VII with the formulation of the rule, and go on in Part VIII to the exceptions for statements made by persons who do not give oral evidence. In Part IX we consider the application of the rule to expert evidence, and recommend a further exception. In Part X we deal with previous statements by those who do testify. The safeguards for a party against whom hearsay evidence is adduced are discussed in Part XI. Part XII deals with matters of procedure, and Part XIII with computer evidence. Finally, our recommendations are collected together in Part XIV.

1.61 A draft Bill which would give statutory effect to our recommendations can be found at Appendix A. Existing statutory provisions to which readers may wish to refer appear at Appendix B. Appendix C contains a list of those who responded to the consultation paper, and Appendix D a list of those who attended the February seminar.

(1) The hearsay rule is expressed in Cross and Tapper at p 46 in the following terms:

[A]n assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. (Italics omitted)

This wording was approved by the House of Lords in Sharp [1988] 1 WLR 7, 11F. See also paras 2.2 2.5 below.

(2) See Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1995) Consultation Paper No 141.

(5) Myers v DPP [1965] AC 1001, 1019G1020A. See Part IV below for other criticisms of the present law.

(7) Notwithstanding Myers, some exceptions have developed judicially: see A Ashworth and R Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292, para 7.9 of the consultation paper and para 4.37, n 80 below.

(10) J B Thayer, A Preliminary Treatise on Evidence at Common Law (1898) p 530.

(12) We have expressed these views more than once before: see our Twenty-Seventh Annual Report (1993) Law Com No 210, para 2.15, and our Twenty-Eighth Annual Report (1994) Law Com No 223, para 2.27. Our views are supported by Professor Andrew Ashworth, Principles of Criminal Law (2nd ed 1995) p 5.

(13) Consisting of Professor Sir John Smith, Professor Edward Griew and Professor Ian Dennis.

(14) Codification of the Criminal Law: A Report to the Law Commission (1985) Law Com No 143.

(15) A Criminal Code for England and Wales: Report and Draft Criminal Code Bill (1989) Law Com No 177, para 2.28.

(17) There are exceptions, such as from rulings in preparatory hearings in serious fraud trials: see Criminal Justice Act 1987, s 9(3)(b), (c) and (11).

(18) As in Kearley [1992] 2 AC 228 and Beckford and Daley [1991] Crim LR 833.

(20) The cost of a criminal trial in the Crown Court was between £1,311 and £1,382 per day, in the financial year 199596 (data provided by the Lord Chancellors Department, Court Services Department).

(21) CLRC Evidence Report, para 25. See also the dictum of Lord Mackay of Clashfern LC in Sharp [1988] 1 WLR 7, 9C.

(22) The percentage of trials dealt with in the Crown Court by recorders and assistant recorders in 1996 was 13.6% and 6.5% respectively (data provided by the Lord Chancellors Department, Court Services Department).

(27) More precisely, where such steps have been taken as are reasonably practicable to secure the attendance of the witness, but without success, and the witness (i) is outside the United Kingdom or (ii) cannot be found: see paras 11.15 11.21 of the consultation paper.

(29) Section 24 of the 1988 Act, s 9 of the Criminal Justice Act 1967, ss 3 and 4 of the Bankers Books Evidence Act 1879 (as amended), s 46(1) of the Criminal Justice Act 1972, and paras 1 and 1A of Schedule 2 to the Criminal Appeal Act 1968: see paras 11.59 11.60 of the consultation paper.

(41)Evidence: Report on Hearsay Evidence in Criminal Proceedings (1995) Scot Law Com No 149.

(45) [1993] Crim LR 448. In Beckford and Daley the Court of Appeal upheld the judges ruling that the admission of one accused could not be adduced by the co-accused, but in Campbell and Williams a contrary decision was reached.

(49) At common law, the court may refuse to admit prosecution evidence if its likely prejudicial effect outweighs its probative value: Collins (1938) 26 Cr App R 177; Sang [1980] AC 402; Blithing (1983) 77 Cr App R 86; Scott v R [1989] AC 1242; Henriques v R (1991) 93 Cr App R 237. Section 78(1) of PACE provides that the court may refuse to admit prosecution evidence if the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

(50) If, for example, one party seeks to adduce statements by absent or deceased declarants which set out at vast length some of the background to the issues in the case, this evidence might have very little probative value but lead to a substantial increase in the length of the hearing.

(57) The person who supplied the information must have had, or be reasonably supposed to have had, personal knowledge of the matters dealt with.

(66) In coming to a decision on this, the court would have to consider (a) the statements contents, (b) any risk that its admission or its exclusion will result in unfairness to any party to the proceedings (and in particular as to how likely it is that the statement can be controverted if the declarant does not give oral evidence), (c) where appropriate, the possibility of making special arrangements for the declarant to give evidence otherwise than in the ordinary way (eg via a television link or from behind a screen), and (d) any other relevant circumstances.

(67) Or some other person charged with the duty of investigating offences or charging offenders: cf 1988 Act, s 23(3)(a).

(77) That is, in addition to the discretion at common law and the discretion under PACE, s 78(1). See n 49 above.

(79) See paras 11.19 11.22 below. Where the declarants credibility is attacked, the judge or magistrates would have power to permit a party to adduce additional evidence for the purpose of denying or answering the allegation made: see paras 11.24 11.25 below.

(80) In effect, reversing Galbraith [1981] 1 WLR 1039 in cases where hearsay evidence forms part of the prosecution case. The Royal Commission recommended the reversal of Galbraith with regard to all cases: ch 4, paras 41 and 42. See further paras 11.26 11.32 below.

(81) There is a specimen direction issued by the Judicial Studies Board which deals with this. See para 3.23 below.

(85) Thus avoiding disputes such as arose in Kearley [1992] 2 AC 228, where three days were spent in oral argument in the House of Lords on the apparently straightforward issue of whether, on a charge of possessing drugs with intent to supply, the prosecution could rely on reports of requests to buy illegal drugs from the defendant.

(86) Subject, in the case of prosecution evidence, to the common law discretion and PACE, s 78(1). See n 49 above.

(87) In Newbury and Teal (1995, Isleworth Crown Court), a case drawn to our attention before the consultation paper (see para 14.16), 1520 hours of a five-week trial were spent hearing evidence about whether s 69 was satisfied.

The Law Commission