Hearsay in English Law

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Evidence
Part of the common law series
Types of evidence
Testimony · Documentary evidence
Physical evidence · Digital evidence
Exculpatory evidence · Scientific evidence
Demonstrative evidence
Hearsay in U.K. law · in U.S. law
Relevance
Burden of proof
Laying a foundation
Subsequent remedial measure
Character evidence · Habit evidence
Similar fact evidence
Authentication
Chain of custody
Judicial notice · Best evidence rule
Self-authenticating document
Ancient document
Witnesses
Competence · Privilege
Direct examination · Cross-examination
Impeachment · Recorded recollection
Expert witness · Dead man statute
Hearsay (and its exceptions)
Excited utterance · Dying declaration
Party admission · Ancient document
Declaration against interest
Present sense impression · Res gestae
Learned treatise  · Implied assertion
Other areas of the common law
Contract law · Tort law · Property law
Wills and Trusts · Criminal law


This article is about the Hearsay rule of evidence in English law. For the hearsay law in the United States, see Hearsay in United States law. For further uses, see Hearsay (disambiguation)

The basic rule at common law, as stated in Cross and Tapper on Evidence, 9th edition:[1] and approved by the House of Lords in R v Sharp,[2]was to render inadmissible

"any statement other than one made by a person while giving oral evidence in the proceedings ... as evidence of any fact or opinion stated"

A less pithy but clearer expression of the rule can be seen in Subramaniam v Public Prosecutor:[3]

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made."

The basic hearsay principle applied to any statement, made orally or by conduct.[4]

A substantial number of exceptions have been carved out of the hearsay rule, both by the common law and, more recently, statute. Civil and criminal hearsay law have also diverged, particularly in light of the Civil Evidence Act 1995 and Criminal Justice Acts 1988 and 2003. It may be helpful to regard the various 'rules' of hearsay as merely setting out exceptions to the general rule of inadmissibility. The hearsay rule is now predominantly regulated by statute.

Contents

[edit] 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[5]. 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.[6] Later attempts to reform through the common law it got little further, with Lord Reid in Myers v DPP[7] 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[7] and Lord Diplock.[8]

The Law Commission[9] and Supreme Court committee[10] provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972. These put hearsay on a predominantly statutory basis, including allowing of hearsay by agreement (which came into criminal law in only 2003) and was built upon by the Civil Evidence Act 1995. Criminal reform came in 1988 and 2003.

[edit] 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: [11]

"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.[12]

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 (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[13]).

[edit] Public documents

Real public documents are generally admissible as evidence of the truth of their contents.[14]

The rationale was explained in Irish Society v Bishop of Derry[15] by Parke B (and later extended to foreign governments' records as well[16]):

"In public documents, made for the information of the Crown, or all the King's subjects who may require the information they contain, the entry by a public officer is presumed to be true when it is made, and it is for that reason receivable in all cases, whether the officer or his successor may be concerned in such cases or not."

Not all public documents will be admissible. Lord Blackburn, in Sturla v Freccia[15], said he understood

"a public document to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to be where there is a judicial or quasi-judicial duty to inquire..."

Essentially, four basic elements apply in determining whether a document is an admissible public record:

  • a public duty to inquire and record - the person compiling it must be under a public duty to satisfy himself of the truth of the statement[17]
  • a public matter - this need not necessarily be of concern to the whole of the public; a company's statutory returns in the register qualified as 'public' [18]
  • retention - the document must have been created for the purpose of being retained and not on a temporary basis[19]
  • public inspection - the document should be available for inspection by the public;[20]

[edit] Bankers' Books Evidence Act 1879

An early solution to the common law difficulties of removing business records from their place of business was found in the Bankers' Books Evidence Act, which permitted a copy to be treated as prima facie evidence of the truth of the entry, provided that entry was made in the ordinary course of business, it was in the bank's custody, and the copy and original were compared.[21] This was extended to include modern forms of information, such as that held on computers.[22] This rule has been succeeded in practice in criminal cases by s.116 of the Criminal Justice Act 2003, below.

[edit] Res Gestae

Res gestae is based on the belief that because certain statements are made naturally, spontaneously and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e. by the witness who will later repeat the statement to the court) and, thus, the courts believe that such statements carry a high degree of credibility.

Imagine then a young woman standing on the side of a main road (the witness). She sees some commotion across the street. On the immediate opposite end of the road to her she see an old man shout 'The bank is being robbed!' as a young man runs out of a building and down the street. The old man is never found (so he cannot appear in court and repeat what he said) but the woman repeats what she heard him say. Such a statement would be considered trustworthy for the purpose of admission as evidence because the statement was made concurrently with the event and there is little chance that the witness repeating the hearsay could have misunderstood its meaning or the speaker's intentions.

[edit] Admissions by agents

[edit] Common enterprise

[edit] Expert evidence

[edit] Civil proceedings

The law concerning hearsay in civil proceedings was reformed substantially by the Civil Evidence Act 1995[23] ("the 1995 Act") and is now primarily upon upon a statutory footing. The Act arose from a report of the Law Commission published in 1993[24] 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 degrees (that is, hearsay evidence of hearsay evidence: for example "Jack told me that Jill told me 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.[25] The common law in respect of good and bad character, reputation or family tradition is also preserved.[26]

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):[27]

  • 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

[edit] Criminal proceedings

[edit] Statutory reform

The Criminal Justice Act 2003 ("2003 Act") introduced significant reforms to the hearsay rule, implementing (with modifications) the report by the Law Commission in 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.

[edit] Common law

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
    • 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

[edit] Statutory rules

[edit] Agreement

Hearsay evidence is permitted by agreement between all parties in the proceedings.[28] No such provision existed before the coming into force of the 2003 Act.

[edit] Interests of justice

There are some older cases which threw the rigidities of the hearsay rule into sharp relief. In Sparks v R[29] 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[30] 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.[31] 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

[edit] Unavailable witnesses

Evidence of a witness may be read in court if he or she is unavailable to attend court.[32]

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[33] 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[34] 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.

[edit] 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.[35]

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.[36]

[edit] 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.

[edit] Supplementary issues

[edit] References

  1. ^ 10th edition (ISBN 0-406-95004-0)
  2. ^ 86 Cr App R 274 at 278
  3. ^ [1956] 1 WLR 965, at 969
  4. ^ R v Chandrasekera (alias Alisandiri) v R [137] AC 220, [1936] All ER 865, paragraph 17
  5. ^ (1837) 7 Ad & El 313
  6. ^ Sugden v Lord St Leonards (1876) 1 PD 154; see also Sturla v Freccia, below
  7. ^ a b [1965] AC 1001 at 1021
  8. ^ Jones v Metcalfe [1967] 1 WLR 1286 at 1291
  9. ^ 13th Report of the Law Reform Committee Cmnd 2964 (1966), para 11
  10. ^ Report of the Committee on Supreme Court practice and procedure, Cmnd 8878 (1953)
  11. ^ Thayer, Legal Essays, 1907
  12. ^ R v Olisa [1990] Crim LR 721
  13. ^ 2 St Tr 15
  14. ^ see Phillimore J in Wilton & Co v Phillips (103) 19 TLR 390
  15. ^ a b Irish Society v Bishop of Derry, (1846) 12 Cl & Fin 641; Sturla v Freccia, [1926] Ch 284 at 318
  16. ^ Lyell v Kennedy, (1889) App Cas 437 at 448-9 (Lord Selbourne)
  17. ^ Doe d France v Andrews (1850) 15 QB 756 (Erle J)
  18. ^ R v Halpin [1975] QB 907
  19. ^ Heyne v Fischel & Co, (1913) 30 TLR 190; Mercer v Dunne, [1905] 2 Ch 538; White v Taylor, [1969] 1 Ch 150
  20. ^ Lilley v Pettit [1946] KB 401, sub nom Pettit v Lilley; see also Thrasyvoulos Ioannou v Papa Christoforos Demetrious [1952] AC 84
  21. ^ Bankers' Books Evidence Act 1879, s.3 - 5
  22. ^ Barker v Wilson[1980] 1 WLR 884; also a new definition clause in s.9, inserted by the Banking Act 1979
  23. ^ 1995 c. 38
  24. ^ The Hearsay Rule in Civil proceedings (LC216), Cm 2321 (1993)
  25. ^ Civil Evidence Act 1995, s.7(2)
  26. ^ ibid s.7(3)
  27. ^ Civil Evidence Act 1995, s.4(2)
  28. ^ Criminal Justice 2003, s.114(1)c)
  29. ^ [1964] AC 964, appeal from the Supreme Court of Bermuda
  30. ^ [1986] AC 41
  31. ^ Criminal Justice 2003, s.114(1)(d)
  32. ^ Criminal Justice Act 2003, s.116, formely in the Criminal Justice Act 1988, s.23
  33. ^ (2003) 26 E.H.R.R. 46, European Court of Human Rights
  34. ^ [2004] 6 Archbold News 2, Court of Appeal
  35. ^ Criminal Justice Act 2003, s.117, formely in the Criminal Justice Act 1988, s.24
  36. ^ R v Humphris, 169 J.P. 441, Court of Appeal

[edit] External links

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