Select Committee on Home Affairs Second Report


PART 11, CHAPTER 2: HEARSAY EVIDENCE

124. Simply stated, "the rule against hearsay is designed to prevent a party using evidence of an out-of-court statement for the purpose of proving that a fact stated in the statement is true".[132] The rationale for the rule is that hearsay is not the best form of evidence because it is not delivered on oath and cannot be tested in cross-examination.[133] It is a general exclusionary rule of evidence, to which there are exceptions (both at common law and under statute).

125. The present law has been described as "exceptionally complex and difficult to interpret".[134] Many regard it as in need of some reform, if only for clarification of what the rules are. In 1997, the Law Commission recommended that hearsay should continue to be generally inadmissible, with a simplified set of exceptions.[135] However, in 2001, Lord Justice Auld took a very different approach by recommending that hearsay should be generally admissible "subject to the principle of best evidence".[136]

126. Chapter 2 of Part 11 will codify (with modifications)[137] the law of hearsay, whilst maintaining its present structure. The drafting of this chapter follows closely the recommendations of the Law Commission.[138] During this inquiry, we found general support for those recommendations.[139]

127. In our view, oral testimony given in court is the generally the best form of evidence. We therefore welcome the Government's proposal to preserve the general exclusionary rule against hearsay evidence, with the modified exceptions provided under chapter 2 of Part 11.

128. One Law Commission recommendation which does not appear to have been taken up is that for repeal of the provisions which give the court discretion to admit any statements and depositions already admitted in committal proceedings.[140] At present, the provisions allow the court to override any objections made by another party, if it considers that it is in the interests of justice to do so. The Law Commission strongly criticised these provisions for the following reasons:

    "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".[141]

    "[This] creates new exceptions to the hearsay rule which are reliant on judicial discretion, and which may apply where the maker of the statement has never been cross-examined and is not unavailable to give oral evidence...in our view cross-examination of the witness at trial should be dispensed with only where it is necessary to do so (because the witness is unavailable). We recommend the repeal of paragraphs 1(4) and 2(4) of Schedule 2 to the Criminal Procedure and Investigations Act 1996 [which allow the court to override an objection if it thinks it is in the interests of justice to do so]."[142]

129. We agree with the Law Commission's view that "cross-examination...should be dispensed with only where it is necessary to do so". We therefore share its concern about the effect on the hearsay rule of Schedule 2 to the Criminal Procedure and Investigations Act 1996. We invite the Government to take this opportunity to repeal the offending paragraphs of Schedule 2 to the 1996 Act, as recommended by the Law Commission, or to explain its reasons for not doing so.




132   I H Dennis, 2nd Edition, The Law of Evidence (Sweet & Maxwell, 2002), p 542. Back

133   Teper v R [1952] AC 480. There are other reasons for the hearsay rule. For a comprehensive account of these see Law Commission, Evidence in Criminal Proceedings: Hearsay and related Topics, Law Com No 245, pp 23-35. Back

134   The Royal Commission on Criminal Justice, Report, Cm 2263 (1993), p 125, para 26. Back

135   Law Com No 245. Back

136   Rt Hon Lord Justice Auld, Review of the Criminal Courts of England and Wales (2001), p 560, para 104. Back

137   For example, to make it easier to adduce hearsay evidence if the original maker of the statement is unable to give evidence personally (eg through illness or death) or where records have been properly compiled by businesses. Back

138   Law Com No 245, Appendix A. Back

139   See for example Q 192, Peter Binning and Ev 69, para 11, JUSTICE. See also the response from Liberty to the Government's consultation on the White Paper, Justice for All. Back

140   Criminal Procedure and Investigations Act 1996, s 68 and sched 2 para 1 and 2. The Law Commission recommended that paras 1(4), 2(4) and 5 of sched 2 be repealed. Back

141   Law Com No 245, para 2.21. Back

142   Law Com No 245, para 8.108. Back


 
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