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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