It is an established principle that the reliability of a particular piece of hearsay evidence does not guarantee its admissibility. Such as the case of Sparks above, where the victim’s mother was to testify.
In Myers v DDP , Myers was charged with giving stolen vehicles new identities and selling them. The prosecution wished to admit as evidence microfilms of manufactures records which unidentified workmen had inscribed engine block numbers on. No one at any point cast any doubt on the authenticity of the microfilms, however they were ruled to be not admissible as hearsay. Lord Reid stated, “No matter how cogent particular evidence may seem to be unless it comes within a class which is admissible, it is excluded.”
A justice system that cannot allow clear evidence must surely need to correction.
Despite the ruling in Myers, there has been a recent departure from the principle that hearsay is always inadmissible regardless of reliability.
An intriguing case for those interested in the future of the hearsay rule is Ward, Andrews, and Broadley (2001), where the Court of Appeal quite openly allowed evidence it admitted was hearsay.
Police were unable to independently identify W as being the occupant of vehicle, in a case regarding conspiracy to steal. However on three occasions the occupant had told the police his name was W, he’d given W’s correct date of birth, and the correct address for W. The Court gave two reasons for allowing this hearsay evidence, namely the quality of the evidence, and secondly because it also considered W’s comments as a confession.
It is however; still too early for us see the ramifications of this decision. Is the precedent now, that reliable hearsay evidence is admissible? The emphasis on the confession is also a problem. Is WAB now going to be distinguishable from other cases due to this, and no change to the hearsay rule has actually happened.
WAB leads onto a further problem with the hearsay principles. Judges have found the rule stands in the way of evidence that could impact on a case, especially where liberty is at stake, and search for ways around it. This can lead to the rule not being applied consistently.
Judges sometimes even blatantly avoid or ignore the hearsay rule, as in Rice (1963), a case decided before Myers. An air ticket bearing the names of R and another M, were used to allow the jury infer that it was used by R and M.
It’s strange that the ticket would not have been admissible had it claimed it was issued to Rice, but it could be admissible because it only inferred as such. Further complications to the hearsay rule and its application are found, when it is noted that the case of Rice was not mentioned in Myers, making it hard to reconcile the authorities on the matter. Was Rice overruled or are they distinguishable?
In other ways, it can be said with certainty that the court is trying to evade the hearsay rule. Two cases that can be compared are McLean (1967) and Osbourne and Virtue (1973).
In McLean, a robbery victim dictated to another the number plate of the offender’s car. At trial the victim could not remember what he had dictated, and had not verified what had been written. The evidence was ruled out as hearsay.
In the second case, O and V had both been identified in a line out by two separate witnesses. At trial one witness could not remember identifying anyone, and the second witness did not believe the person she picked was in court. However the police officer responsible was allowed to give evidence confirming the identification’s.
In both cases one witness is attempting to prove the truth of another’s statement. They are, on this point of law, indistinguishable. In one, the hearsay rule applied, in the other, the court allowed a way around it.
An extension to the hearsay rule arose in the case of Kearley (1992), where the rule was held to apply to “implied assertions”. An implied assertion, is a piece of evidence that is circumstantial, yet the law treats it as though it were a direct statement upon whose truth the party adducing it, intends to rely on.
In the case, K was arrested on suspicion of drug dealing. While police searched his flat 10 people were said to have telephoned and 7 called in person. Some asked for K and offered to buy drugs. The prosecution did not call any of the “prospective buyers” to testify, but called the police officers to confirm the calls took place. The defence successfully convinced the majority (3-2) of the House of Lords that this was however nothing more than hearsay and irrelevant. Lord Griffiths dissenting stated that he thought this evidence was as convincing as could be of K’s activity as a dealer.
It was even stated that implied assertions should be left alone from many of the suspicions that are attached to express declarations, as implied assertions are not intended to deceive .
Evidently, the previous case’s used, illustrate that all is not well with the rule against hearsay in modern day criminal justice. When courts attempt to find a way around a rule, and when they misapply it there is a problem. But should the hearsay rule be completely abolished? What exactly is the rationale for the hearsay rule?
In Teper v R (1952), Lord Normand gave a speech in favour of the rule, and one that explains why it has been seen as a necessary part of our system. He said:
“The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the witness whose words are spoken to by another person cannot be tested by cross examination, and the light which his demeanour would throw upon his testimony is lost.”
The rule against hearsay has also been stated to be rooted in the system of trial by jury, by Lord Bridge in Blastland (1986), which he recognised the inability in the untrained mind to know how much weight to attach to certain pieces of evidence.
Despite, however, the reasoned arguments in support of the hearsay rule, there have been a number of judges opposed to the rule. Such as in the case of Gilfoye, where Bedlam LJ spoke out against the rationale for the hearsay rule used by Lord Bridge in Blastland.
“Those men and women (of the jury), were surely entitled to a rational explanation as to why, when they were chosen to apply their common sense and experience in the assessment and appraisal of witnesses’ evidence they should be regarded as lacking the ability to discern the difference between speculative rumour and spontaneous truth in statements made out of court.”
Clearly bedlam LJ, felt that if the Jury is trusted with the ability to make a decision on the facts and statements made in court by witnesses, why then have so little faith in them, as to think they are unable to distinguish between good evidence and bad. Although, one can also see the point of Lord bridge in Blastland. A jury not legally trained may not be able to distinguish evidence as being primary or secondary. Though it would perhaps not be completely unreasonable to expect a trial judge to give them advice on such matters.
The Law Commission looked at possible reforms between 1995-97. It made a number of recommendations. Firstly that the rule should not apply to “implied assertions”, and hearsay is defined only to encompass statements that are actually intended to cause the hearer to believe that the matter stated is true, or to act on the basis it’s true. Secondly that the courts have discretion to allow a “hearsay” statement if the court is satisfied it is in the “interests of justice”.
Thirdly it recommended that there is a procedure for giving notice of hearsay evidence, whereby it is up to the other party to contest its admissibility, and also that if a hearsay statement is admitted the other party has leave to adduce evidence attacking the credibility of the maker of the statement.
As can be seen, the hearsay rule can sometimes interfere with, and prevent a smooth running criminal justice system. It is obviously in need of some reform. That however, does not mean it should become exactly like the civil system, and be completely abolished.
If one thinks Lord Bridge’s comments in Blastland are based on some truth, regarding the untrained legal mind, then it should be remembered that juries also are of little importance in civil cases now.
The hearsay rule still has a purpose. Though it is not so necessary that the law could not function with out it. Perhaps with the law commission’s recommendations there can be some middle ground found between the rule as it is now, and complete abolishment of the hearsay rule.
Due to the Civil Evidence Acts of 1968 and 1995. The latter states “In civil proceedings evidence shall not be excluded on the ground that it is hearsay”. Section 1 (1)
Such as modern cases like Derodra [2000] 1 Cr pp R 41, and Ward and Andrews and Broadley [2001] Crim LR 316
It’s a wide topic, so what’s not relevant as been ignored, such as the exceptions to the rule against hearsay where some evidence is admissible in court.
Cross on evidence, leading textbook. Cross, Rupert ‘On Evidence’ 7th ed. 1990
Subramaniam v Public Prosecutor [1956] 1 WLR 965
Courts have however admitted allowing hearsay evidence “as a matter of grace in favour of the appellant” (see Callan [1994] Crim Lr 198. Though this was not so in sparks, and shows the inconsistency in the area.
Turner [1975] 61 Cr App R 67
It is unknown why, perhaps because they did not wish to cross their dealer, or they could not be traced. However, had one of these callers testified, it would then no longer be hearsay.
“it is difficult to think of much more convincing evidence of (k’s) activity as a drug dealer than customers constantly ringing his flat to buy drugs and a stream of customers beating a path to his door for the same purpose.” Lord Griffiths, Kearley (1992).
The fact that K had only been found with a small amount of drugs (an amount that could be manufactured easily) may mean that the hearsay rule being applied actually protects innocents from police corruption.
Lord Oliver felt that to ignore the hearsay ruling for an implied assertion would have meant the court “embarking upon a process of judicial legislation”. Perhaps this highlights the need for the courts to be given improved and greater detailed legislation on the matter from parliament.
AC 41. “The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve” – Lord Bridge.
