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2.1 In Parts II to IV of the consultation paper we examined in some detail the hearsay rule and the exceptions to it. For the purposes of this report, we intend to provide merely a summary of the present law and to refer to some important developments since the consultation paper was completed. (1) We must preface our comments with the warning of Lord Reid in 1963, which remains true today, that it is "difficult to make any general statement about the law of hearsay which is entirely accurate". (2) So we submit our summary with appropriate diffidence.

THE RULE ITSELF

2.2 Although various formulations of the hearsay rule have been debated, (3) the most comprehensive is that of Cross and Tapper

any assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact or opinion asserted. (4)

2.3 It is essential to determine the purpose for which evidence is tendered: the rule applies only when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. (5)

2.4 The rule covers both assertions made by persons who do not give oral evidence and previous assertions by those who do. It covers both oral statements and those contained in documents. It is also now settled that the rule extends to what are known as "implied assertions": (6) this is a rather misleading shorthand term for utterances or behaviour from which a fact (including a state of mind or an intention) may be inferred, although they are not intended to communicate that fact. (7)

2.5 If evidence falls within the hearsay rule, it will be inadmissible unless it falls within an exception. The main implications of the rule are as follows.

(1) Witnesses must give oral evidence, and a written statement cannot be a substitute for their personal appearance in the witness box.

(2) Witnesses must give evidence from first-hand knowledge, and may not repeat what other people have told them.

(3) Records are inadmissible evidence of the matters they contain.

(4) Where a witness gives oral evidence, only the oral evidence counts: previous statements by the witness generally do not. (8)

THE EXCEPTIONS TO THE RULE CREATED BEFORE 1988

Common law exceptions

2.6 The common law exceptions to the hearsay rule have developed in a haphazard manner because, as Lord Reid has explained,

in many cases there was no justification either in principle or logic for carrying the exception just so far and no farther. One might hazard a surmise that when the rule proved highly inconvenient in a particular kind of case it was relaxed just sufficiently far to meet that case, and without regard to any question of principle. (9)

2.7 As might be expected where exceptions have been developed on a case-by-case basis, anomalies and overlaps have been created, and sometimes an exception does not seem to go far enough. However, Phipson classifies the cases in accordance with what appear to be their rationales: (10)

(1) cases based on the assumption that what a person has said against his or her interests is likely to be true;

(2) cases where it is recognised that where the witness is dead, it may be better to admit the witnesss evidence rather than to deprive the court of all proof;

(3) cases which recognise the force of common knowledge, where a fact is reputed amongst those who ought to know it but its source is unknown;

(4) cases based on the intrinsic reliability of public records; and

(5) cases where the contemporaneity of the statement itself is some guarantee of its reliability.

2.8 Applying these principles, the common law exceptions to the hearsay rule can conveniently be grouped under the following heads:

(1) admissions and confessions of parties and of their agents;

(2) statements by deceased persons:

(a) declarations against interest;

(b) declarations in the course of duty;

(c) declarations as to public interests;

(d) dying declarations (in the case of homicide);

(e) declarations as to pedigree;

(f) declarations by testators as to their wills;

(g) testimony given in a previous trial;

(3) reputation (and, in all but (a), family tradition)

(a) of bad character;

(b) of pedigree;

(c) of the existence of a marriage;

(d) of the existence or non-existence of any public or general right;

(e) to identify any person or object;

(4) public documents;

(5) statements admitted as part of the res gestae; and

(6) statements made by a party to a common enterprise, admitted against another party to the enterprise as evidence of any matter stated.

Statutory exceptions created before 1988

2.9 The House of Lords decided in 1965 (11) that any further exceptions to the hearsay rule should be introduced by Parliament, not the judiciary; (12) but the legislative changes to the rule have themselves been piecemeal and anomalous.

2.10 Under section 9 of the Criminal Justice Act 1967, a party may tender a written statement as evidence (rather than calling the maker of the statement) to the extent that oral evidence by the maker of the statement could have been adduced, provided that certain conditions are satisfied. (13) This procedure is used frequently, but only for undisputed evidence, because an objection by an opposing party means that the statement cannot be used.

2.11 There are other statutory exceptions. (14) For example, copies of entries in bankers books may be admitted as prima facie evidence of the entries or of the matters, transactions and accounts recorded in them; (15) and transcripts of evidence may be admitted at retrials ordered by the Court of Appeal in circumstances governed by the Criminal Appeal Act 1968, Schedule 2, paragraph 1.

THE CRIMINAL JUSTICE ACT 1988

2.12 In the leading case of Myers v DPP (16) Lord Reid recommended a major statutory review of the law of hearsay. In 1972 the CLRC made major recommendations for change in its Evidence Report. (17) Its recommendations were not accepted, but instead a series of piecemeal measures were adopted. (18) When the Roskill Committee further examined the issue of hearsay evidence in 1986, it recommended that, in criminal proceedings arising from alleged fraud, documents should be allowed to speak for themselves and be admissible without further proof. (19) Eventually Parliament passed the Criminal Justice Act 1988, (20) which added important new exceptions but left many old ones untouched.

2.13 The 1988 Act is limited to hearsay statements contained in documents; but "statement" and "document" are both widely defined, so as to include "any representation of fact, however made" and "anything in which information of any description is recorded" respectively. (21)

Section 23

2.14 Two significant statutory exceptions are set out in sections 23 and 24 of the 1988 Act. Section 23 (22) relates only to first-hand hearsay. It provides that a statement made by a person in a document shall be primafacie admissible in criminal proceedings, as evidence of any fact stated, of which direct oral evidence by him or her would be admissible, if the case falls within one of certain specified categories. The categories cover four different reasons why the person who made the statement may be unavailable to give evidence in person: because he or she is dead, or by reason of his or her bodily or mental condition unfit to attend as a witness; because he or she is outside the United Kingdom and it is not reasonably practicable to secure his or her attendance; because all reasonable steps have been taken to find him or her without success; and, if the statement was made to a police officer, because the person who made it does not give evidence through fear or because he or she is kept out of the way.

Section 24

2.15 Section 24 of the 1988 Act (23) is headed "Business etc documents": it covers documents created or received by a person in the course of a trade, business, profession or occupation, or as the holder of a paid or unpaid office. Statements admitted under section 24 may include multiple hearsay: in other words, the information may pass through more than one person before it is recorded in the document presented to the court. But the person who originally supplied the information must have had, or be reasonably supposed to have had, personal knowledge of the matters dealt with.

Admitting a statement under section 23 or section 24

2.16 In deciding whether a statement is admissible under the 1988 Act, the following requirements must be satisfied:

(1) the relevant material must be a "statement" within the meaning of the Act; (24)

(2) the statement must be contained in a "document" as defined in the Act; (25)

(3) it must be a statement of a type which is covered either by section 23 (that is, first-hand hearsay) or by section 24 (business documents);

(4) if the statement is of a type falling within section 23 and not section 24, the maker must be unavailable to give oral evidence for one of the reasons specified by section 23, and the judge or magistrate must not exercise the discretion to exclude the statement under section 25; and

(5) if the statement is in a business document but was prepared for the purpose of criminal proceedings or a criminal investigation, either the maker must be unavailable for one of the reasons set out in section 23 or it must be unreasonable to expect him or her to have any recollection of the matters dealt with, and the leave of the court must be obtained under section 26. (26)

2.17 Where hearsay is admitted under section 23 or section 24 of the 1988 Act, the other party is expressly permitted to lead evidence of various matters which, had the maker of the statement given evidence orally, could have been used to attack the makers credibility. (27)

2.18 We will return to the 1988 Act; but it might be useful to point out now that the responses we have received indicate a lack of consistency in the way in which judges exercise their discretion under the Act. Some perhaps those with a traditional hostility to hearsay regularly exercise their discretion to prevent hearsay statements from being admitted. We discuss below the worrying consequences of the Acts reliance on this discretion. (28)

2.19 If, at modified committal proceedings, a prosecutor has reason to believe a statement would be admissible at trial under section 23 or 24 of the 1988 Act, then that statement is admissible at the committal proceedings by virtue of the Magistrates Courts Act 1980, section 5D. (29)

THE CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996

2.20 Since the consultation paper was published, the Criminal Procedure and Investigations Act 1996 has been passed, which makes a significant change to the rules on the admissibility of hearsay evidence. Statements and depositions admitted in committal proceedings are now admissible at trial in the Crown Court, subject to the right of an opposing party to object. (30) The court may override an objection if it considers it to be "in the interests of justice so to order". (31) No details are given as to how this discretion should be exercised. (32) An important point is its interaction with another provision, to which we now turn.

2.21 Under section 97A of the Magistrates Courts Act 1980, (33) a magistrate who is satisfied that a person is likely to be able to make a statement on behalf of the prosecutor containing material evidence, or to produce on behalf of the prosecutor a document likely to be material evidence, but will not voluntarily do so, may issue a summons requiring that person to have his or her evidence taken as a deposition or to produce the document before the committal hearing. Rules of court (34) give some guidance as to the procedure for the taking of a deposition from a reluctant witness. There is no provision in the rules for the defendant to attend, nor do they specify whether the proceedings are to take place in open court or in chambers; it is for the court to determine these matters. (35) It is envisaged that the prosecutor will examine the reluctant witness. (36) The witnesss evidence will be put in writing. (37) The magistrates clerk must, as soon as is reasonably practicable, send a copy of the deposition or the document produced to the prosecutor, (38) and the prosecutor must serve it on the defence like any other evidence. The deposition can then be used not only in the committal proceedings (39) but also at the trial, under the provisions set out in the previous paragraph. The net effect is that a statement on which there has been no cross-examination will be prima facie admissible at trial, even though the declarant is available to testify.

FOOTNOTES TO PART II

(1) It was completed for publication on 11 May 1995.

(2) Myers v DPP [1965] AC 1001, 1019.

(3) See, eg, Phipson, para 21-02; Stephens Digest of the Law of Evidence (12th ed 1948) art 15; Myers [1965] AC 1001, 10056.

(4) Cross and Tapper, p 565. A shorter formulation (omitting "or opinion") now appearing at p 46 of Cross and Tapper was approved by the House of Lords in Sharp [1988] 1 WLR 7, 11, per Lord Havers, with whom Lord Mackay of Clashfern LC, Lord Keith of Kinkel, Lord Bridge of Harwich and Lord Griffiths concurred. This formulation was also approved in Kearley [1992] 2 AC 228, 254H255A, per Lord Ackner, with whom Lord Bridge of Harwich agreed.

(5) Subramaniam v Public Prosecutor [1956] 1 WLR 965, 970, per Mr L M D de Silva.

(6) Kearley [1992] 2 AC 228.

(7) See paras 7.5 7.9 below.

(8) We deal with this last implication in Part X below.

(9) Myers [1965] AC 1001, 1020BC.

(10) Phipson, para 21-24.

(11) Myers v DPP [1965] AC 1001.

(12) Notwithstanding this, some exceptions have developed judicially; see A Ashworth and R Pattenden, "Reliability, Hearsay Evidence and the English Criminal Trial" (1986) 102 LQR 292, and para 4.37, n 80 below.

(13) Criminal Justice Act 1967, s 9(2) and (3). The basic requirements are that the statement must be signed by the person who made it and must contain a declaration that it is true to the best of his or her knowledge and belief, and that he or she made it knowing that if it were tendered in evidence, he or she would be liable to prosecution if he or she wilfully stated in it anything which he or she knew to be false or did not believe to be true. It is a further requirement that the statement should have been served on the other parties to the proceedings and that none of them have, within seven days of its being served, notified the other party that they object to its being tendered in evidence. Similar provisions enable written statements made in Scotland and Northern Ireland to be admitted, on the same terms as statements made in England and Wales: Criminal Justice Act 1972, s 46(1).

(14) Other statutory provisions allow depositions taken before the trial to be read at the trial: eg the Merchant Shipping Act 1995, s 286 (replacing s 691 of the Merchant Shipping Act 1894) and the Children and Young Persons Act 1933, ss 42 (as substituted by the Criminal Justice and Public Order Act 1994, s 44(3), Sched 4, Pt 11, para 5) and 43. See paras 3.57 3.59 and Appendix C of the consultation paper for other statutory exceptions.

(15) See Bankers Books Evidence Act 1879, s 3. This is considered in greater detail at paras 8.103 8.104 below.

(16) [1965] AC 1001, 1022.

(17) CLRC Evidence Report, paras 224 265. See paras 8.6 8.16 of the consultation paper.

(18) See para 4.1 of the consultation paper.

(19) Fraud Trials Committee Report (1986) para 5.35. See paras 4.1 and 8.20 8.21 of the consultation paper.

(20) The Bill originally applied to oral as well as written hearsay evidence. See Professor D J Birch, "The Criminal Justice Act 1988 (2) Documentary Evidence" [1989] Crim LR 15.

(21) See the Civil Evidence Act 1995, Sched 1, para 12. The definitions of "statement" and "document" used to derive from s 10(1) of the Civil Evidence Act 1968 by virtue of the 1988 Act, Sched 2, para 5. The Civil Evidence Act 1995, Sched 1, para 12 substitutes a new para 5 in the 1988 Act.

(22) The text of this section is set out in Appendix B. Its defects are addressed at paras 4.41 4.45 below.

(23) The text of this section is set out in Appendix B. A problem caused by the section is discussed in para 4.39 below.

(24) See para 2.13 above.

(25) See para 2.13 above.

(26) The court has additional discretions, at common law and under s 78(1) of PACE, to exclude prosecution evidence: see paras 4.42 and 4.43 of the consultation paper and para 1.31, n 49 above.

(27) 1988 Act, Sched 2.

(28) See paras 4.28 4.31 below.

(29) Inserted by the 1996 Act, s 47, Sched 1, para 3.

(30) 1996 Act, s 68 and Sched 2, paras 1 and 2. The court in its discretion may also order that the statement or deposition should not be used at the trial: Sched 2, paras 1(3)(b) and 2(3)(c).

(31) 1996 Act, Sched 2, paras 1(4) and 2(4).

(32) We consider the defects of the exception introduced by the 1996 Act at paras 4.46 4.50 below. We recommend amendment to the 1996 Act at paras 8.108 8.113 below.

(33) Inserted by the 1996 Act, Sched 1, para 8.

(34) Rule 3 of the Magistrates Courts (Amendment) Rules, SI 1997 No 706 (L12), inserts rule 4A into the Magistrates Courts Rules, SI 1981 No 552.

(35) Home Office Circular 11/1997, Annex B.

(36) Rule 4A(2).

(37) Rule 4A(1)(a).

(38) Magistrates Courts Act 1980, s 97A(9).

(39) Ibid, s 5A(3)(c), inserted by the 1996 Act, s 47, Sched 1, para 3.