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The legislative culmination of these e¬orts was the Youth Justice and
Criminal Evidence Act 1999207 which has no fewer than eighteen sections giving
courts the power to give a ˜special measures direction™ to assist witnesses, other
than the defendant, who might have di¬culty giving evidence or who might be
reluctant to do so.208 The reason given for excluding the defendant was that he
could choose not to give evidence “ an unconvincing justi¬cation.
The special measures that can be authorised under the 1999 Act include:
screens to ensure that the witness cannot see the accused (s. 23); allowing the
witness to give evidence from outside the court by live television link (s. 24);
clearing the press and public from the court so that evidence can be given in
private (s. 25); removal of the judge™s and barristers™ wigs and gowns (s. 26);
allowing an interview with the witness video recorded before the trial to be
shown at the trial as the witness™s evidence-in-chief (s. 27); allowing the cross-
examination of the witness to be conducted in a pre-recorded video recording
(s. 28); and questioning through an intermediary (s. 29).

203 204
Pigot, para. 2.26. See references in D. Cooper, n. 202 above at n. 49.
205
Inserting a new s. 32A into the 1988 Act.
206
The Home O¬ce and the Department of Health jointly produced a Memorandum of Good
Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings (HMSO,
1992). For a description see B. Ward, ˜Children™s Evidence™, Solicitors™ Journal, 3 July 1992,
p. 644 and by the same author, ˜Interviewing Child Witnesses™, 142 New Law Journal, 6
November 1992, p. 1547.
207
The Act was preceded by the Home O¬ce White Paper Speaking Up for Justice, the Report of
the Home O¬ce Interdepartmental Working Group on the Treatment of Vulnerable or
Intimidated Witnesses in the Criminal Justice System, 1998.
208
For a discussion of the implications and complexities of the 1999 Act with regard to child
witnesses see L.C.H. Hoyano, ˜Variations on a Theme by Pigot: Special Measures Directions
for Child Witnesses™, Criminal Law Review, 2000, pp. 250“73.
433 Justice should be conducted in public


Vulnerable witnesses for this purpose are (1) those under the age of seven-
teen (s. 16(1)); (2) persons who su¬er from a mental disorder, mental impair-
ment or signi¬cant learning disability, or physical disorder or disability which
the court considers likely to a¬ect the quality of their evidence (s. 16(2)); and
(3) persons whom the court is satis¬ed would give less than their best evidence
because of fear and distress caused by giving evidence (s. 17).
If on an application or of its motion the court decides that a witness is eligi-
ble for assistance in the form of special measures it must determine which
special measure would be likely to improve the quality of the witness™s evidence.
Witnesses under seventeen are automatically eligible for special measures.
There are three groups: (1) children giving evidence in a sexual o¬ence case; (2)
children giving evidence in a case involving an o¬ence of violence, abduction
or neglect; and (3) those giving evidence in any other case. In all three categories
there is a statutory presumption that the witness™s evidence-in-chief will be
given by a pre-recorded video unless this would not improve the quality of the
evidence.
In the case of the ¬rst two groups, which are described as being in need of
˜special protection™, the court does not have to consider whether special mea-
sures will improve the quality of their evidence. That requirement is treated as
being satis¬ed (s. 21(5)). Witnesses in need of special protection will have a
video recording of their evidence-in-chief admitted and will have their cross-
examination conducted via live television link unless exceptionally the court
exercises its power under s. 27(2) on the ground that this would not be in the
interests of justice. The House of Lords held in 2005 that the mandatory pre-
sumption in s. 21(5) did not breach the defendant™s right to a fair trial under
Article 6 of the European Convention on Human Rights.209 A critical comment
on the Divisional Court™s decision in the same case pointed out that the manda-
tory presumption had ˜the bizarre e¬ect of teenagers giving evidence against
teenagers through live television, in many cases the witnesses being older than
the defendants™.210 How could it be fair that the older and more mature witness
would be protected from face to face cross-examination to which the defendant
was exposed? The jury was likely to regard one as the victim and the other as the
criminal simply because one was protected and the other was not. ˜The whole
notion of the presumption of innocence gets turned on its head™.211

209
R v. Camberwell Green Youth Court, ex p D and ex p G [2005] UKHL 4, [2005] 2 Cr App R 1.
For commentary see J. Doak, ˜Child Witnesses: Do Special Measures Directions Prejudice the
Accused™s Right to a Fair Hearing™, 9 International Journal of Evidence and Proof, 2005,
pp. 291“5.
210
M. Sikand, ˜Special Measures: Protecting Young Witnesses or Prejudicing Young Defendants?™,
7 Archbold News, 2003, p. 6.
211
Ibid. In R (S) v. Waltham Forest Youth Court [2004] EWHC Admin 715, [2004] 2 Cr App R 335
the thirteen-year-old defendant, S, a vulnerable child with learning di¬culties, was too afraid
to speak out against her older co-defendants who had threatened her. The Divisional Court
held that the express terms of the statute made it impossible to allow S to give evidence by
TV link.
434 The trial process


Implementation of these measures has gone in stages. Home O¬ce Circular
39/2005 set out the position with regard to each category of special measure. All
Crown Courts and magistrates™ courts were able to give special measures direc-
tions for screens, live TV links and clearing the court. Pre-recorded evidence-
in-chief was permitted in all Crown Courts under s. 16 but only in pilot courts
under s. 17 and in magistrates™ courts under s. 16 only for child witnesses in
need of special protection.
The Home O¬ce announced in 2004 that it was not going ahead with imple-
mentation of the most controversial of the special measures “ allowing cross-
examination by pre-recorded interview under s. 28212 “ described as ˜a central
feature of “full Pigot” ™.213
For Home O¬ce guidance see Achieving best evidence in criminal proceedings:
guidance for vulnerable or intimidated witnesses, including children (available on
www.cps.gov.uk and www.homeo¬ce.gov.uk).214
In June 2004 the Home O¬ce published Are special measures working?
Evidence from surveys of vulnerable and intimidated witnesses (Research Study
283). The vast majority of witnesses who had used special measures found them
helpful “ especially live link and video recorded evidence-in-chief.
On 1 December 2004 the Home O¬ce announced a wide-ranging inquiry
into the future of children™s evidence.215 At the time of writing this had not yet
been published.
In October 2005 a study of CPS data involving over 6,000 vulnerable and
intimidated witnesses showed that a clear majority of special measures applica-
tions were successful. TV links were the most popular with video recorded
examination-in-chief a clear second favourite but a long way behind.216
NB Lord Justice Auld recommended that in due course consideration should
be given to allowing all critical witnesses in cases of serious crimes to give evi-
dence-in-chief by pre-recorded video.217 This proposal was translated into leg-
islative form in s. 137 of the Criminal Justice Act 2003. With the permission of
the court, the witness in indictable-only o¬ences and speci¬ed either-way
o¬ences can be allowed to give evidence-in-chief by a video recording made

212
For a discussion see D. Cooper, n. 202 above. See also D. Birch and R. Powell, Meeting the
Challenge of Pigot: Pre-Trial Cross-Examination under Section 28 of the Youth Justice and
213
Criminal Justice Act 1999 (February 2004). Hoyano, n. 208 above at p. 265.
214
See also D. Heraghty, ˜Gearing Up for Greater Use of Video Evidence™, 153 New Law Journal,
28 March 2003, p. 460; L. Ellison, The Adversarial Process and the Vulnerable Witness (OUP,
2001); D. Birch, ˜A Better Deal for Vulnerable Witnesses?™,Criminal Law Review, 2000,
pp. 223“49; and L.C.H. Hoyano, ˜Striking a Balance between the Rights of Defendants and
Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair
Trial?™, Criminal Law Review, 2001, pp. 948“69.
215
Press release, ˜Giving Child Witnesses the Support they Need™ “ www.cjsonline.gov.uk.
216
P. Roberts, D. Cooper and S. Judge, ˜Coming Soon to a Court Near You! Special Measures for
Vulnerable and Intimidated Witnesses™, 169 Justice of the Peace, 24 September and 1 October
2005, pp. 749“51 and 769“74 at 770. The ¬rst two authors conducted the survey “ see Special
Measures for Vulnerable and Intimidated Witnesses: An Analysis of CPS Monitoring Data, 2005 “
217
www.cps.gov.uk. Auld, pp. 555“6.
435 The exclusionary rules of evidence


when the matters were fresh in his memory. He would then give oral evidence
only as to matters not adequately dealt with in the video recording. The court
must be satis¬ed that the witness™s recollection was signi¬cantly better when he
made the recording and that it is in the interests of justice. This provision has
not yet, however, been brought into force. For the time being, as Professor Birch
has said, this ˜explosive device™ remains ˜tucked away with the [harmless
looking] provisions about memory-refreshing and ticking merrily™.218


8. The exclusionary rules of evidence
One of the chief di¬erences between the English and the continental systems is
that the English excludes various categories of evidence in spite of the fact that
they are relevant. These exclusionary rules of evidence fall into three main cat-
egories: (1) evidence excluded because it might be unduly prejudicial; (2) evi-
dence excluded because it is inherently unreliable; and (3) evidence excluded
because it is against the public interest that it be admitted.


Evidence excluded because it might be unduly prejudicial
Bad character and prior convictions
The general principle was that evidence of the defendant™s previous misconduct
and of his disposition or his propensity to act in a particular way were generally
excluded until he had been convicted. There were said to be two reasons. First,
the fact that the defendant behaved in a particular way before does not in itself
provide evidence that he did the act of which he now stands accused. Secondly,
insofar as it does provide such evidence, there is a danger that a jury would give
it undue weight.
By contrast, in systems based on the continental civil law, the defendant™s
character and background are fully admissible in evidence. In the United States,
his prior convictions are admissible if the defendant gives evidence.
The basic rule was subject to important exceptions:
• Where the defendant himself introduced his own prior record “ for instance
to show that he was a thief not a rapist.
• Where the defendant asserted that he was a person of good character, the
prosecution could introduce evidence to rebut the assertion.
• Where the defence attacked the character of prosecution witnesses, the pros-
ecution could introduce evidence to show what sort of person was ˜throwing
mud™ (the so-called ˜tit for tat™ rule).
• The ˜tit for tat™ rule applied also where one defendant blamed another defen-
dant (known as ˜a cut-throat defence™).


218
D. Birch, ˜Criminal Justice Act 2003 (4) Hearsay: Same Old Story, Same Old Song™, Criminal
Law Review, 2004, p. 555 at 52.
436 The trial process


• Where there was su¬cient similarity between the facts of the present case and
the facts in the previous case (the ˜similar facts™ rule).
The rules had been developed piecemeal over many decades mainly through
judicial decisions.219 The topic was exceedingly complex and controversial. In
1993 the Runciman Royal Commission recommended that the whole question
of the admissibility of bad character evidence should be referred to the Law
Commission.220 The Government referred the issue to the Law Commission in
1994. In 1996 the Commission produced a consultation paper221 but it took
until 2001 for it to produce its Final Report and Draft Bill.222 Broadly, the Draft
Bill would have enacted the general prohibition on evidence of the defendant™s
bad character and restated the existing exceptions in tidier form.

Empirical evidence
In the Crown Court Study conducted for the Runciman Royal Commission, the
defendant had previous convictions in almost four-¬fths (77 per cent) of con-
tested cases.223
The Law Commission™s 1996 consultation paper referred to empirical evi-
dence of how jurors treat evidence of previous misconduct based on a study
conducted for the Commission.224 The research showed that recent convictions
for similar o¬ences increased the perceived probative e¬ect of the o¬ence
charged. Knowledge of a previous conviction for an o¬ence of dishonesty did
not decrease the defendant™s credibility as a witness but a previous conviction
for indecent assault on a child had a distinct negative impact on the jurors™ per-
ception of the defendant™s credibility whatever the charge.225
In¬‚uenced by the empirical evidence as to the potential impact on jurors of
the evidence of bad character, the Law Commission proposed four safeguards:
¬rst, that leave should normally be required for the admission of such evidence,


219
For a brief overview see C. Tapper, ˜The Criminal Justice Act 2003 (3) Evidence of Bad
Character™, 2004 Criminal Law Review, pp. 533“5. Tapper points out that much of the existing
law was the result of decisions of the House of Lords in the previous decade i.e. it was not very
220
old at all. Runciman, p. 126, para. 30.
221
Evidence in Criminal Proceedings, consultation paper no. 141. For commentary and discussion
see Criminal Law Review, February 1997.
222
Evidence of Bad Character in Criminal Proceedings, Cm. 5257, Law Com No. 273. For
commentary and discussion see J. McEwan, ˜Previous Misconduct at the Crossroads: Which
“Way Ahead”?™, Criminal Law Review, 2002, pp. 180“91; P.Mir¬eld, ˜Bad Character and the
Law Commission™, 6 International Journal of Evidence and Proof, 2002, pp. 141“62.
223
M. Zander and P. Henderson, The Crown Court Study (Royal Commission on Criminal
Justice, Research Study No. 19, 1993) section 4.6.1.
224
Published as an appendix to the Commission™s paper and separately as S. Lloyd-Bostock, ˜The
E¬ects on Juries of Hearing about the Defendant™s Previous Criminal Record: A Simulation
Study™,Criminal Law Review, 2000, p. 734 and The E¬ects on Magistrates of Learning that the
Defendant has a Previous Conviction (2000, LCD Research Series No 3/2000).
225
For a critical assessment both of the empirical data and of the Law Commission™s reliance on
it see M. Redmayne, ˜The Law Commission™s Character Convictions™, 6 International Journal
of Evidence and Proof, 2002, pp. 71“93.
437 The exclusionary rules of evidence


secondly, that such evidence be subject to a heightened test of relevance,
thirdly, that the conditions of admissibility be set out in detail and, fourthly,
that such evidence should be admitted only by a strongly worded inclusion-
ary discretion. As will be seen, none of these safeguards was adopted in the
legislation.

Auld report (2001)
Lord Justice Auld™s Review of the Criminal Courts of England and Wales was pub-
lished in the same month as the Law Commission™s Final Report. Auld said that
the law on the admissibility of bad character evidence was unduly complex and
di¬cult to apply, that it often failed to distinguish between relevant and irrele-
vant evidence and arguably left too much discretion to judges. In his view there
was much to be said ˜for a more radical view than has so far found favour with
the Law Commission, for placing more trust in the fact ¬nders and for intro-
ducing some reality into this complex corner of the law™,226 but, given that the
Law Commission was about to produce its Final Report, he did not make any
speci¬c recommendations.

The Government™s White Paper (2002)
In its White Paper Justice for All in July 2002 the Government said that it
opposed the routine introduction of all previous convictions as that might prej-
udice the fact ¬nders unfairly against the accused. (˜Juries and judges need to
make their decisions on the basis of the evidence of whether or not the defen-
dant committed the crime with which he is charged rather than his previous
reputation™ (para. 4.55).) However, it continued:
We favour an approach that entrusts relevant information to those deter-
mining the case as far as possible. It should be for the judge to decide whether
previous convictions are su¬ciently relevant to the case, bearing in mind the
prejudicial e¬ect, to be heard by the jury and for the jury to decide what
weight should be given to that information in all the circumstances of the case
(para. 4.56).
Thus, where a doctor was charged with indecent assault against a patient the
judge should be able to rule that the prosecution could introduce evidence that
the doctor had previously been acquitted in two previous separate trials on the
similar charges involving other patients. Or, where the defendant was charged
with assaulting his wife, the judge should be able to rule that previous convic-
tions for assault occasioning bodily harm and evidence by witnesses of past
occasions when he was seen striking his wife be admitted in evidence. Unless
the court thought the information would have a disproportionately prejudicial
e¬ect, the fact ¬nders should be allowed to know about previous convictions
and other misconduct relevant to the o¬ence (para. 4.57).


226
Auld, Ch. 11, p. 567, para. 120.
438 The trial process


The Government, in short, favoured a much more radical approach than the
Law Commission.227 This was implemented in the Criminal Justice Act 2003.
The bad character provisions of the Act were brought into force in December
2004.228

The Criminal Justice Act 2003
De¬nition of bad character Evidence of a person™s ˜bad character™ is de¬ned in
the Act as ˜evidence of, or of a disposition towards, misconduct on his part™
(s. 98). This could include evidence showing that a person was guilty of an
o¬ence of which he was acquitted.229 ˜Misconduct™ is de¬ned as ˜the commis-
sion of an o¬ence or other reprehensible behaviour™ (s. 99).230
Evidence of bad character of a non-defendant Section 100(1) sets out the cir-
cumstances in which evidence can be given of the previous misconduct of
someone other than the defendant “ such as a witness. The ¬rst requirement is
that the leave of the court has to be obtained. There is no comparable require-
ment with regard to such evidence concerning the defendant.231 Secondly, the
evidence can only be introduced if either: (1) it is important explanatory evi-
dence; (2) it has substantial probative value in relation to a matter in issue and
that issue is one of substantial importance in the case; or (3) the parties agree
that the evidence should be given.
For evidence of a non-defendant™s bad character to be admissible as ˜impor-
tant explanatory evidence™ it must be such that: ˜(a) without it, the court or jury
would ¬nd it impossible or di¬cult properly to understand other evidence in
the case and (b) its value for understanding the case as a whole is substantial™ (s.
100(2)). The court is required to take into account factors such as the nature
and number of previous events and when they occurred. If the evidence is ten-
dered to show that someone else was responsible for the crime, the court has to
consider the extent to which it shows or tends to show that to be the case. These
rules give witnesses more protection than under the previous law.
Evidence of the defendant™s bad character Sections 101“106 set out the circum-
stances in which evidence of the defendant™s bad character would be admissible.

227
For a critical comparison between the Law Commission™s proposals and the provisions of the
Criminal Justice Act 2003 see Tapper, n. 219 above. He found the di¬erences ˜both profound
and disturbing™ (at p. 537).
228
For an assessment of the early case law on these provisions see A. Waterman and T. Dempster,
˜Bad Character: Feeling Our Way One Year On™, Criminal Law Review, 2006, pp. 614“28.
229
Preserving the e¬ect of the House of Lords decision in Z [2000] AC 483 that three complaints
of rape of which the defendant had been acquitted could be admitted in a subsequent trial for
rape.
230
For an exploration of the meaning of this phrase see R. Munday, ˜What Constitutes “Other
Reprehensible Behaviour” under the Bad Character Provisions of the Criminal Justice Act
2003?™, Criminal Law Review, 2005, pp. 24“43. He deplored the word ˜reprehensible™ as
˜evocative of Victorian social moralising™.
231
By contrast, the Law Commission™s Bill did require leave. As Professor Tapper observed, the
Commission regarded the requirement of leave ˜as the pivot upon which avoiding prejudice
turned™ (n. 219 above at p. 541).
439 The exclusionary rules of evidence


Instead of the previous exclusionary rule with exceptions “ which the Law
Commission thought should be continued “ the approach is inclusionary
subject to limited judicial discretion to exclude such evidence where to admit it
would be unfair.
Section 101(1) provides that evidence of a defendant™s bad character is
admissible where any of seven gateways apply. Sections 102“106 provide further
clari¬cation regarding the gateways. The seven gateways are where:
(a) The parties agree to it being given.
(b) The defendant introduces the evidence himself.
(c) It is ˜important explanatory evidence™. Section 102 adds that it is important
explanatory evidence if (1) without it the court or the jury would ¬nd it
impossible or di¬cult properly to understand other evidence in the case; or
(2) its value for understanding the case as a whole is substantial.
(d) It is relevant to an important matter in issue232 between the defendant and
the prosecution. Section 103(1) extends the meaning of ˜a matter in issue™
in providing that it includes whether he has a propensity (a) to commit that
kind of o¬ence ˜except where his having such a propensity makes it no more
likely that he is guilty of the o¬ence™; or (b) to be untruthful ˜except where
it is not suggested that the defendant™s case is untruthful in any respect™.233
Section 103(1) (a) and (b) represent a major change in the law. As regards (a),
it is no longer necessary, as it was under the former law, to show striking simi-
larity. The test is simple relevance. There is no need to show ˜enhanced proba-
tive value™ or ˜enhanced relevance™.234 Propensity to commit that kind of o¬ence
can be established by proof that he has been convicted of an o¬ence of the same
description or of the same category235 “ unless the court considers this would
be unjust by reason of the length of time since the conviction ˜or for any other
reason™ (s. 103(2) and (3)).
There is no minimum number of events necessary to demonstrate propen-
sity. In cases of unusual behaviour, such as arson or child sexual abuse, a single

232
Section 112 adds, somewhat unnecessarily, that ˜important matter™ means ˜a matter of
substantial importance in the context of the case as a whole™.
233
For a disquisition as to the possible meaning of these provisions see R. Munday, ˜Bad
Character Rules and Riddles: “Explanatory Notes” and True Meanings of Section 103(1) of the
Criminal Justice Act 2003™, Criminal Law Review, 2005, pp. 337“54.
234
Hanson, Gilmore and Pickstone [2005] EWCA Crim 824, [2005] 1 WLR 3169. In Hanson the
Court of Appeal upheld a conviction for stealing a carrier bag containing £600 from a
bedroom after the defendant had pleaded guilty when the judge said he would allow the
prosecution to prove his previous convictions for dishonesty. In Gilmore the Court of Appeal
upheld a theft conviction where G had been found with a bag of stolen goods in an alleyway,
the jury having heard of his three previous convictions for shoplifting.
235
Two o¬ences are of the same category, inter alia, if they belong to the same category
prescribed by an order of the Home Secretary. The Criminal Justice Act 2003 (Categories of
O¬ences) Order 2004, SI 2004/3346 created two categories “ one for o¬ences of dishonesty,
the other of o¬ences against children. In Hanson, n. 234 above at [8], the Court of Appeal
held that s. 103(2) was not exhaustive of the types of conviction that could be relied on to
show propensity.
440 The trial process


instance could be enough.236 Even a single previous conviction for shoplifting
could show propensity ˜if the modus operandi has signi¬cant features shared by
the o¬ence charged™. This may require the court to inquire into the circum-
stances of previous convictions.237
As regards s. 103(1) (b), in Hanson238 the Court of Appeal said it made admis-
sible evidence of convictions of o¬ences that involved telling lies and also prior
convictions in contested cases where the defendant gave evidence and his word
was plainly disbelieved:
(e) It has ˜substantial probative value in relation to an important matter in
issue between the defendant and a co-defendant™. This, therefore, is avail-
able only to defendants as between themselves. Section 104(1) adds that
evidence which is relevant to the question whether the defendant has a
propensity to be untruthful is admissible under (e) ˜only if the nature of
his defence is such as to undermine the co-defendant™s defence™. This
appears to be a considerably more restrictive rule than under the previous
law.239
(f) To ˜correct a false impression given by the defendant™ by putting his char-
acter in evidence. An assertion is treated as made by the defendant if made
by a defence witness or in answer by any witness in cross-examination in
response to a question asked by the defence ˜that is intended to elicit it or is
likely to do so™ (s. 105).
(g) The defendant has attacked the character of another person.240 Under the
previous law, evidence admitted under the ˜tit for tat™ rule went only to
credibility not to guilt. This is no longer so. In Highton241 the Court of
Appeal held that once evidence has been admitted under gateway (g), it can
properly be applied under another gateway.242

236
Hanson, n. 234 above at [9].
237
In Hanson, n. 234 above, the Court of Appeal warned that judges should not permit the trial
˜unreasonably to be diverted into an investigation of matters not charged in the indictment™
238
([12]). Note 234 above at [13].
239
For an exploration of the serious questions as to the interpretation of gateway (e) and
s. 104 see R. Munday, ˜Cut-throat Defences and the Propensity to be Untruthful under
Section 104 of the Criminal Justice Act 2003™, Criminal Law Review, 2005, pp. 624“37.
His conclusion (at 637) was that the provisions have ˜introduced a highly uncertain
regime, where one can anticipate considerable variation from one court to another™
which was hardly satisfactory ˜when what is being removed without fanfare, is a defendant™s
traditional entitlement to defend himself by all means when a co-defendant has
undermined the foundation of his case™. See also J. Hartshorne, ˜Defensive Use of a Co-
accused™s Confession and the Criminal Justice Act 2003™, 8 International Journal of Evidence
and Proof, 2004, pp. 165“78.
240
As further de¬ned in s. 106. Under the previous law the attack had to be on a prosecution
witness or the deceased victim. Also it only applied if he gave evidence. Neither restriction
applies to gateway (g).
241
Highton, Van Nguyen and Carp [2005] EWCA Crim 1985, [2005] 1 WLR 3472.
242
For critical commentary see for instance R. Munday, ˜The Purposes of Gateway (g): Yet
Another Problematic of the Criminal Justice Act 2003™, Criminal Law Review, 2006,
pp. 300“18.
441 The exclusionary rules of evidence


The Act speci¬cally states that under (d) and (g) (but not the other gateways)
the defendant can apply to the court for the evidence not to be admitted on the
ground that admitting it would have such an adverse e¬ect on the fairness of the
proceedings that the court ought not to permit it (s. 101(3)), but although the
court does not have that discretion to exclude the evidence in relation to the
other gateways, it would appear still to have the general discretion to exclude
evidence that would make the proceedings unfair under s. 78 of PACE (as to
which see p. 479 below).243

Criticism of the bad character provisions
The bad character proposals in the Bill were strongly criticised by the all-party
House of Commons Home A¬airs Committee. It did not agree that prior
similar convictions should be admitted automatically unless the defendant suc-
ceeded in persuading the trial judge to rule against admissibility. (˜We believe
that these provisions could lead to miscarriages of justice in some cases. In par-
ticular we are concerned at the prospect of using a defendant™s previous record
to prop up what might otherwise be a weak case. We are also concerned that this
will increase the temptation for the police to pursue “the usual suspects”.™244) It
agreed with the Criminal Bar Association that ˜propensity for misconduct
should not justify automatic admission of the defendant™s bad character™.245 It
was concerned that the test for admitting the defendant™s bad character was
lower than that for admitting the bad character of witnesses. (˜In our view, there
should be a standard test requiring the bad character to have “substantial pro-
bative value” in relation to a matter in issue, which is itself of substantial
importance in the context of the case as a whole™.246) Its overall conclusion was
blunt: ˜We recommend that [the clauses] which relate to the admissibility of a
defendant™s bad character, be deleted from the Bill™.247 The Government rejected
the Committee™s advice.
The then Lord Chief Justice, Lord Woolf, on behalf of the judiciary was also
highly critical of these provisions. He spoke about the Bill in a speech on the
Second Reading in the House of Lords on 16 June 2003. In an unusual move he
said that he did not have time in his speech to deal with all the matters in issue
and that he would place a lengthy document in the library setting out ˜what the
judiciary, whom I represent, regard as being the problem areas™:248
13. The provisions as a whole are extremely confusing and will prove very
di¬cult to interpret. They will result in lengthy arguments in court, more
appeals and more scope for technical errors on the part of the trial judge that

243
In Highton, n. 241 above, Lord Woolf said: ˜judges may consider that it is a sensible
precaution, when making rulings as to the use of evidence of bad character, to apply the
provision of section 78 and exclude evidence where it would be appropriate to do so under
244
section 78 . . .™ (at [13]). 2002“3, 2nd Report, December 2002, HC 83, para. 116.
245 246 247
Ibid, para. 119. Ibid, para. 122. Ibid, para. 123.
248
With Lord Woolf ™s permission, the writer published the gist of the twelve-page document in
the New Law Journal, 8 August 2003, pp. 1228 and 1242 and 15 August, pp. 1264“6.
442 The trial process


could give rise to convictions being overturned. Evidence that would previously
have been considered neither admissible nor relevant will apparently be treated
as both admissible and relevant.
15. An example of the sort of complications that are likely to arise as a conse-
quence of chapter 1 is provided by clause 96 [which became s. 103 (ed.)]. That
clause is designed to introduce into a trial an issue as to whether a defendant has
a propensity to commit an o¬ence or a propensity to be untruthful and then
allow evidence of bad character to be given. This evidence of propensity is par-
ticularly dangerous. A trial should relate to whether an accused has committed
an o¬ence or is untruthful and not questions as to whether the defendant has a
propensity. Again the judiciary consider this provision is likely to complicate
proceedings and prolong trials without any bene¬t . . .
16. Another curiosity relates to the provisions as to the defendant™s bad char-
acter. The judge is allowed to exclude evidence of bad character if it would have
˜such an adverse e¬ect on the fairness of the proceedings that the court ought
not to admit it™, but this discretion does not apply to all the situations where evi-
dence of bad character can be admitted. In addition, the clause addresses when
the judge is to exclude the evidence. It would be preferable if this clause and
many similar clauses gave the judge a discretion to admit such controversial evi-
dence and not to exclude it (clause 93(3) [which became s. 101(3)]).
Despite the Lord Chief Justice™s criticisms of the bad character provisions, the
case law after they came into force shows that both trial and appellate judges
have accepted that the 2003 Act has completely changed the position. Moreover
the Court of Appeal has said that the trial judge™s ˜feel™ for the case is usually the
critical ingredient of the decision. The Court of Appeal said that it would apply
the same approach to the judge™s ruling on admissibility of bad character evi-
dence as it did to the exercise of judicial discretion.249 In other words, appeals
are likely to fail “ and most have in fact failed.

Use of prior convictions in civil proceedings
Previous convictions could not be admitted in evidence in civil proceedings
arising out of the same facts. A conviction for dangerous driving was therefore
not admissible in subsequent proceedings for damages resulting from the
same incident. This rule, known as the rule in Hollington v. F Hewthorn & Co
Ltd,250 was abolished by the Civil Evidence Act 1968, s. 11. The conviction is
now rebuttable evidence of the facts involved in the o¬ence, save in libel pro-
ceedings where the conviction is deemed to be irrebuttable evidence of the
facts.


Evidence excluded because it is inherently unreliable
Children
The law a¬ecting the evidence of children has always caused problems.

249 250
Renda [2005] EWCA Crim 2826, [2006] 2 All ER 553 at [3]. [1943] KB 587.
443 The exclusionary rules of evidence


Children™s evidence on oath
The basic rule at common law was that evidence had to be given on oath. In
order to take the oath the witness had to understand its signi¬cance. Until 1991
there was no statutory rule as to the age at which a child was allowed to take the
oath. It was regarded a matter for the judge in the case to determine whether the
child had an appreciation of the solemnity of the occasion and of the special
responsibility to tell the truth conveyed by the oath. In Hayes251 the court said
that the dividing line was probably between eight and ten. In 1972 the Criminal
Law Revision Committee recommended that in criminal cases children under
fourteen should always give evidence unsworn. This was implemented twenty
years later in the Criminal Justice Act 1991.252

Children™s unsworn evidence
Although the basic rule was that evidence had to be given on oath, in fact the
courts would accept unsworn evidence. In criminal cases this was already
known in the seventeenth century in cases of ˜rape, buggery, witchcraft, and
such crimes which are practised upon children™.253 In 1779 it was held that a
child could only give evidence on oath.254 It took another century until the
Criminal Law Amendment Act 1885 before children were allowed to give
unsworn evidence. The 1885 Act applied only in cases involving unlawful sexual
intercourse with girls under thirteen. It was extended to all criminal cases by the
Children and Young Persons Act 1933, s. 38 though the 1933 Act provided that
the unsworn evidence of a child required corroboration. Curiously, however, in
civil cases unsworn evidence from children was not permitted until the
Children Act 1989.
As to the age at which unsworn evidence could be admitted, a court
ruled in 1958 that it had been wrong to accept the unsworn evidence of the ¬ve-
year-old daughter who was the victim of her father™s alleged incest,255 but in two
cases in 1990 the Court of Appeal refused to grant leave to appeal against a con-
viction for incest based on the unsworn evidence of a child of six.256 This issue
with regard to criminal cases has now been clari¬ed by legislation.

Recent reforms
The rules with regard to the evidence of children have recently been altered
partly in response to a more positive attitude to the evidence of children257 and

251
[1977] 1 WLR 234.
252
Section 52 inserted a new s. 33A into the Criminal Justice Act 1988: ˜A child™s evidence in
criminal proceedings shall be given unsworn™.
253 254
Hale, History of the Pleas of the Crown, 1736, p. 284. Brasier (1779) East PC 443.
255
Wallwork (1958) 42 Cr App Rep 153. In Wright (1987) 90 Cr App Rep 91 this was extended to
256
a six-year-old. B (1990) Times, 1 March; Z [1990] 2 QB 355.
257
For a review of empirical research evidence see J.R. Spencer and R. Flin, ˜Child Witnesses “
Are They Liars?™, New Law Journal, 24 November 1989, p. 1603. Their conclusion was that the
evidence did not support the traditional view that children are more likely to tell lies than
adults, and it contradicted the view that the younger the child, the more likely it is that he or
444 The trial process


partly in response to a concern about the di¬culty of getting convictions in sex
abuse cases involving young children.

Competence
The Youth Justice and Criminal Evidence Act 1999 established that the question
of competence to give evidence in criminal cases is not to be treated as a matter
of age. Section 53(1) states that a person of any age is competent to give evi-
dence in a criminal case. (In a case in 2006 the Court of Appeal upheld the trial
judge™s decision to allow a girl of three and a half to give evidence.258) A person
is not competent, however, if he cannot understand questions put to him or give
understandable answers (s. 53(2)).259 In order to assess whether a child can give
intelligible testimony the judge should either watch a video taped interview
or should ask the child questions (or both) so as to determine if he or she
can understand questions and answer them in a coherent and comprehensible
manner.260 The question is one on which expert evidence can be received
(s. 54(5)).261

The oath
As has been seen, in 1991 the rule was adopted that children aged fourteen
should give evidence on oath while the evidence of children under fourteen
would always be unsworn. The Youth Justice and Criminal Evidence Act 1999,
s. 55 con¬rmed this in a provision which states that a witness in a criminal case
may not be sworn unless he has reached the age of fourteen ˜and he has a
su¬cient appreciation of the solemnity of the occasion and of the particular
responsibility to tell the truth which is involved in taking the oath™ (s. 55(2)).
The test has however now been signi¬cantly watered down. If the witness is able

Footnote 257 (cont.)
she will lie. On the empirical evidence see also R. Bull, ˜Children as Witnesses™, 4 Policing,
1988, p. 130; and D. Birch, ˜Children™s Evidence™, Criminal Law Review, 1992, p. 262 at 263“4.
One piece of research was reported by G. Davies, A. Tarrant and R. Flin, ˜Close Encounters of
the Witness Kind: Children™s Memory / a Simulated Health Inspection™, British Journal of
Psychology, 1989. The study tested 128 boys and girls split into age groups of six to seven and
ten to eleven. The test involved direct confrontation between the child and an adult stranger
in which the child was touched and an article of clothing (shoes) removed. The two age
groups did not di¬er in their ability to help produce a photo¬t of the man. The report says:
˜even the youngest subjects tested could have provided evidence on a number of points
relevant to the main theme of events which would have been accurate in essentials and of
interest to the court™. See also J. Plotniko¬ and R. Woolfson, In Their Own Words: The
Experience of 50 Young Witnesses in Criminal Proceedings (NSPCC/Victim Support, 2004).
258
Powell [2006] EWCA Crim 3, [2006] Crim LR 781. The defendant™s appeal was allowed on
other grounds.
259
For an application of s. 53 in a case where the videoed interview of an 81-year-old rape victim
who had long-term delusional problems and had been diagnosed with early Alzheimer™s
disease was allowed see R v. D [2002] EWCA Crim 990, [2003] QB 90.
260
Cf DPP v. M [1997] 2 All ER 749.
261
This cancelled the 1997 decision that it was not appropriate to permit expert evidence to be
given on the issue on the ground that the question was one well within the competence of a
judge or magistrate (G v. DPP [1997] 2 All ER 755).
445 The exclusionary rules of evidence


to give intelligible testimony, the Act provides that it is to be presumed that the
witness is ¬t to take the oath unless evidence to the contrary is given. Giving
intelligible testimony means understanding questions put to him and giving
answers that can be understood (s. 55(8)). Again, expert evidence can be given
on the matter (s. 55(6)).

Corroboration
As has been noted, the unsworn evidence of children in criminal cases had to
be corroborated (Children and Young Persons Act 1933, s. 38). Moreover, the
unsworn evidence of one child could not corroborate the unsworn evidence of
another child, however cogent the evidence.262 The e¬ect of these rules was to
make it impossible in some cases to get convictions of o¬enders in extremely
serious sexual abuse cases.
The requirement of corroboration for the unsworn evidence of children was
abolished by the Criminal Justice Act 1988, s. 34(1). Section 34(3) also provided
that unsworn evidence could corroborate the evidence, whether sworn or
unsworn, of anyone.
Prior to 1988 the sworn evidence of a child did not technically require cor-
roboration but the judge had to warn the jury of the danger of relying on such
uncorroborated evidence. The requirement of that warning was abolished by
s. 34(2) of the 1988 Act “ unless such a warning is required in relation to the
evidence of an adult witness.

Persons of defective intellect
Where it is alleged that a witness lacks the mental capacity to testify, it is for the
judge to decide whether he understands the nature of the oath.

Parties
Until modern times, both in civil and criminal cases, the parties themselves
were not permitted to give evidence because it was thought that their evidence
would be unreliable. This was changed for civil cases in 1851 by the Evidence
Act of that year. In criminal cases defendants were not permitted to give evi-
dence on oath until 1898, though before that date the judges allowed accused
persons to make an unsworn statement from the dock. The present rules regard-
ing occasions when parties need not give evidence fall under the di¬erent
heading of evidence excluded for reasons of public policy “ see below.

Spouses of parties
The spouse of a party was incompetent as a witness on the same basis as the
party himself on the grounds of the likely unreliability of the evidence. It was
not until the Evidence Amendment Act 1853 that a spouse became a competent
witness in a civil case and in the Criminal Evidence Act 1898 that a spouse

262
Hester [1973] AC 296.
446 The trial process


became a competent witness for the defence in a criminal case. (As will be seen
(p. 462 below), the spouse is not normally competent for the prosecution.) It
seems, however, that a spouse is not a compellable witness for the defence.263

Hearsay evidence
Hearsay evidence, very simply de¬ned, is an assertion made by someone who is
not present in court as a witness. If A is the witness, what B said to A is ¬rst-
hand hearsay; what B said to C, who told A, is second-hand hearsay. A docu-
ment is hearsay evidence unless its author is there to introduce it in evidence.264
The rule excluding hearsay evidence as inherently unreliable has been
regarded as one of the essential features of the common law principle that a trial,
especially in a criminal case, should be based on evidence given by live witnesses
in open court subject to cross-examination. At the Nuremberg trial of the Nazi
war criminals there was a clash between the continental systems which permit
hearsay evidence and the common law systems which basically reject it. In that
situation the common law countries agreed to accept hearsay evidence.
A dramatic example of the impact of the exclusion of hearsay evidence is
Sparks v. R:

Sparks v. R [1964] 1 All ER 727, Judicial Committee of the Privy Council
A girl of three was sexually assaulted. The mother asked what the person who
did it looked like. She said, ˜it was a coloured boy™. The defendant, a sta¬
sergeant in the US Air Force, was a white man. The trial court ruled that the
mother could not give her daughter™s statement in evidence. On appeal, inter
alia, against this ruling, Lord Morris, giving the judgment of the Board, said:
It becomes necessary therefore to examine the contentions which have been
advanced in support of the admissibility of the evidence. It was said that ˜it was
manifestly unjust for the jury to be left throughout the whole trial with the
impression that the child could not give any clue to the identity of her assailant™.
The cause of justice is, however, best served by adherence to rules which have
long been recognised and settled. If the girl had made a remark to her mother
(not in the presence of the appellant) to the e¬ect that it was the appellant who
had assaulted her and if the girl was not to be a witness at the trial, evidence as
to what she had said would be the merest hearsay. In such circumstances it
would be the defence who would wish to challenge a contention, if advanced,
that it would be ˜manifestly unjust™ for the jury not to know that the girl had
given a clue to the identity of her assailant. If it is said that hearsay evidence
should freely be admitted and that there should be concentration in any partic-
ular case on deciding as to its value or weight, it is su¬cient to say that our law
has not been evolved on such lines, but is ¬rmly based on the view that it is wiser


263
See T.M.S. Tosswill, ˜The Accused™s Spouse as a Defence Witness™, Criminal Law Review, 1979,
p. 702 and M. Cohen, ˜Are Wives Really so Incompetent?™, Criminal Law Review, 1980, p. 222.
264
The de¬nition of the hearsay rule at common law given in C. Tapper (ed.), Cross and Tapper
on Evidence is: ˜a statement other than one made by a person while giving oral evidence in the
proceedings was inadmissible as evidence of any fact stated™ (10th edn, 2004) p. 578.
447 The exclusionary rules of evidence


and better that hearsay should be excluded save in certain well-de¬ned and
rather exceptional circumstances. [The appeal was allowed on other grounds.]
In Myers v. DPP265 the prosecution foundered because of the hearsay rule. The
accused took part in a conspiracy involving the purchase of wrecked cars with
their log books, then disguising stolen cars so as to make them conform to the
log books of the wrecked cars and selling them as renovated wrecks. In order to
prove that the cars were the stolen rather than the wrecked ones, the prosecu-
tion called an o¬cer in charge of the records of the manufacturers of the stolen
cars to produce micro¬lms of the cards ¬lled in by workmen showing the
numbers of the cylinder blocks which coincided with the cylinder block
numbers of the cars sold by the defendants. The majority of the House of Lords
held that the admission of the records would be a breach of the rule against
hearsay evidence because, as Lord Reid said: ˜the entries on the cards were asser-
tions by the unidenti¬able men who made them that they had entered numbers
which they had seen on the cars™. That problem was dealt with almost immedi-
ately by the Criminal Evidence Act 1965, which made business or trade records
admissible.
In R v. Kearley266 K was accused of possession of drugs with intent to supply.
Drugs had been found in his ¬‚at. While the police were there, ten phone calls
were received in which the caller asked to speak to him about getting drugs. The
prosecution wanted to introduce evidence of these calls through evidence of the
police o¬cers who intercepted the calls. After ¬ve days of argument the House
of Lords ruled (three to two) that the calls were inadmissible as hearsay evidence!
There have always been a considerable number of exceptions to the hearsay
rule, some statutory, some common law, and in recent years there were a succes-
sion of statutory exceptions and amendments of the rule. As will be seen (p. 451
below) in 1995, on the recommendation of the Law Commission, the hearsay rule
was e¬ectively abolished in civil cases. In the same year the Law Commission pub-
lished a report recommending drastic reform of the rule for criminal cases (see
pp. 453“54 below). The Government accepted the recommendations in full but,
in the event, they were not implemented. Instead, the Government introduced an
even more radical reform in the Criminal Justice Act 2003.
The rule only applies if the statement in question is to be introduced in order
to establish the truth of its contents. If it is to be introduced for some other
purpose, it does not count as hearsay evidence. This is confusing not only for
the student, it causes confusion even for the courts. The distinction drawn is
between ˜hearsay™ and ˜direct evidence™. Thus, for instance, the printout from an
intoximeter measuring blood alcohol level has been treated not as hearsay but
as direct (˜real™) evidence of the mechanical process.267 In Taylor v. Chief
Constable of Cheshire 268 the prosecution case depended in part on what three
police o¬cers had seen in a video recording allegedly showing the appellant

265 266
[1965] AC 1001. [1992] 2 AC 228, [1992] 2 All ER 345, HL.
267 268
Castle v. Cross [1985] 1 All ER 87. [1987] 1 All ER 225.
448 The trial process


committing theft from a shop, but the video had mistakenly been erased before
the trial. The evidence of what was on the video was held by the Divisional
Court not to be hearsay at all but rather direct evidence of what was seen hap-
pening at a particular time and place. Similarly, the courts have held that a
sketch made by a police o¬cer from a description given by a witness was not
hearsay,269 that a photo¬t picture compiled by a police o¬cer was not hearsay270
and that in some circumstances a computer printout is not hearsay.271
However, in Townsend272 the court refused to extend this to a piece of paper
on which a victim of a mugging had written the assailant™s car number with a
defective ball-point pen which only made indentations. The police had been
able to blow up the indentations which matched the defendant™s car number,
but they had lost the original piece of paper.
Another form of evidence which looks confusingly as if it should be treated
as hearsay evidence is when it is introduced simply to permit a witness to refresh
his memory (for instance in the very common situation where a police o¬cer
is permitted to ˜refresh™ his memory from his notebook) or to show a previous
inconsistent statement or a prior consistent statement.
Another example of evidence that is not hearsay is where the statement is
introduced not to show the truth of the statement but rather to show a person™s
mental state. Thus in Subramaniam v. Public Prosecutor273 the court allowed evi-
dence of threats allegedly made by terrorists to the appellant to be admissible
not to show that they intended to carry out those threats but to demonstrate his
state of mind where his defence to the charge was duress.
A cynical comment on these examples of ˜non-hearsay™ is to see them all as
ways simply of avoiding the rule “ a view expressed by Professor Adrian
Zuckerman:
The methodology just described illustrates a fairly common tendency in this
area. A certain type of statement is taken to be reliable. To avoid exclusion the
court searches for a convenient tag which may be given to this type of evidence
so that it may pass for something other than hearsay. To ful¬l its function the
tag or label must be associated with admissible evidence . . . Once the label is
attached to a piece of evidence, the inhibiting e¬ect of the hearsay rule disap-
pears as if by magic.274
There are in addition a long list of recognised exceptions to the rule.


269
Smith, Percy [1976] Crim LR 511.
270 271 272
Cook [1987] Crim LR 402. Wood [1982] Crim LR 667. [1987] Crim LR 411.
273
[1956] 1 WLR 965. Cf Blastland [1986] AC 41 where the House of Lords ruled that the out-
of-court statement could only be introduced to show a state of mind where the state of mind
was in issue. The charge was murder and buggery. The defence was that the o¬ences had been
committed by someone else. The defence wished to introduce statements made by that person
to others revealing knowledge of the murder at a time when it was not generally known. The
House of Lords held that the purpose of introducing the statement was not to show the other
person™s state of mind but to show that he had committed the murder. It was therefore not
274
admissible. Principles of Criminal Evidence (Clarendon Press, 1989) p. 197.
449 The exclusionary rules of evidence


Exceptions to the hearsay rule
At common law, an early exception recognised was that a deposition taken
before a coroner or justice of the peace might be read at a subsequent trial if the
witness was dead or too ill to travel. The exception did not, however, extend to
cases where the witness was simply untraceable, even if it could be shown that
diligent e¬orts had been made to ¬nd him. These exceptions were in the
Criminal Justice Act 1925, s. 13(4)(a) which provided also for the situation
where the witness whose deposition is to be read is proved to be insane or kept
out of the way by means of the procurement of the accused or on his behalf.
Another common law exception was for the dying declaration. This allowed
the prosecution in a murder or manslaughter case to introduce in evidence a
statement made by the deceased purporting to identify his assailant, providing
he had a ˜settled and hopeless expectation of death™. If he believed he had a
chance of recovery the exception did not apply. For a modern example of the
rule, in Nembhard v. R275 the Judicial Committee of the Privy Council upheld a
conviction for murder where the only evidence against the accused was the
deceased™s alleged statement to his wife that he was going to die and that the
defendant had shot him.
From a practical point of view, a more important common law exception in
criminal cases was for admissions or confessions. If it were not for this exception,
a police o¬cer would not be able to tell the court about the accused™s alleged
self-incriminatory statement. The rationale for the exception was that people
do not make false statements to the police to their own detriment; therefore
there would be an inherent probability that the statement was true, which
would avoid the vice of hearsay statements that they are inherently unreliable
and not subject to cross-examination. The rationale is wholly unconvincing.
First, as is nowadays well known, people do make untrue confessions and
admissions “ whether to protect others or out of some form of pressure or psy-
chological weakness. Secondly, the issue with regard to confessions in a con-
tested case is typically not whether the confession was true or false but whether
it was made at all. The real reason for the exception is the need for it if crimi-
nals are to be brought to book.
Another common law exception was for a statement made so close to the
event as in e¬ect itself to be part of the event (the res gestae rule). It used to be
thought that the statement had to be actually contemporaneous with the
event,276 but this requirement was abandoned. In Andrews277 Lord Ackner said
that a res gestae statement was admissible if it was made in circumstances which
275
[1982] 1 All ER 183.
276
In Beding¬eld (1879) 14 Cox CC 341 the court refused to admit under the res gestae doctrine a
statement by the victim who came out of her house with her throat slit (˜see what Harry™s
done™) because it was not made at the moment of the murderous attack.
277
[1987] 1 All ER 513. A was charged with murder by stabbing. The victim was found bleeding
heavily a few minutes after the stabbing. A police o¬cer arrived a few minutes later. The
victim told the police that the defendant had carried out the stabbing. This statement was
admitted as part of the res gestae and the ruling was upheld by the House of Lords.
450 The trial process


were su¬ciently spontaneous and contemporaneous with the event to preclude
the possibility of concoction or distortion. It had to be so closely associated with
the event that the victim™s mind was still dominated by it.278
The common law also allowed statements in public documents such as a birth
or marriage certi¬cate to be admitted without requiring that the author of the
document has to come to court to give evidence. At common law, however, the
rule required that the document be available for public inspection.279
There was another common law exception to the hearsay rule for family law
matters especially where they a¬ected children. The attitude of the courts was
not, however, consistent. Sometimes the courts ruled that in family law cases the
hearsay rule could be relaxed,280 but in other cases they insisted on strict com-
pliance with the rules.281 The Children (Admissibility of Hearsay Evidence)
Order 1990282 provided that the hearsay rule did not apply in civil proceedings
before the High Court or a county court concerning the upbringing, mainte-
nance or welfare of a child. The Order also provided that the hearsay rule did
not apply in relation to such proceedings in juvenile courts. In 1991 this rule
was applied to magistrates™ courts.

Reform of the hearsay rule in civil cases
In civil cases the main statutes until 1995 were the Civil Evidence Acts of 1938,
1968 and 1972. Under the 1938 Act, statements in original documents could be
admitted to establish a fact of which direct oral evidence would be admissible if
the maker of the statement had personal knowledge of the matter or it was part
of a continuous record in the performance of a duty and the witness could not
attend because he was dead, ill or abroad, or if all reasonable e¬orts to ¬nd him
had been made without success. It also allowed the statement to be admitted if
the witness was present to avoid delay or cost. The maker of the statement had
to have personal knowledge of the facts stated and there were speci¬c require-
ments that he authenticate the document. Also the statement had to be one
made in writing.
The Civil Evidence Act 1968 broadened admissible hearsay to oral statements
and also to mechanically recorded statements made by someone under a
duty to record such information supplied to him by someone with personal

278
In Turnbull (1984) 80 Cr App Rep 104 the court admitted a statement made in a pub some
200 yards away from the scene of the attack and some forty-¬ve minutes after it had occurred.
279
In Lilley v. Pettit [1946] KB 401 the court held inadmissible the regimental records of the army
unit of the defendant™s husband where she had been charged with falsely entering her
husband™s name as father of her child. The prosecution wanted to prove that the husband had
been abroad at all material times. The evidence was not admissible because the records were
not public.
280
See for instance O¬cial Solicitor v. K [1965] AC 201; Hurwitt v. Hurwitt [1979] 3 FLR 194;
Edwards v. Edwards [1986] 1 FLR 187; Thompson v. Thompson [1986] 1 FLR 212n; Webb v.
Webb [1986] 1 FLR 541.
281
See especially H v. H; K v. K [1990] Fam 86; Bradford City Metropolitan Council v. K and K
[1990] Fam 140 (˜the Bradford case™ and 9 Civil Justice Quarterly, 1990, p. 228).
282
SI 1990/1115.
451 The exclusionary rules of evidence


knowledge of the facts. Procedural safeguards required notice to be given in
advance to the other side, with full particulars of the hearsay statement in ques-
tion. If the other party objected, the person whose statement was to be given
had to be called in person, unless he was dead, ill or abroad, or could not rea-
sonably be expected to remember the matter. The Civil Evidence Act 1972 made
the evidence of expert witnesses admissible in the form of their reports without
having to call them.
In January 1991 the Law Commission proposed in a consultation paper that
the hearsay rule should be completely abolished for civil proceedings.283 The
Commission suggested that, despite reform of the hearsay rule, it was not only
di¬cult to understand but increasingly di¬cult to reconcile with recent proce-
dural developments such as pre-trial exchange of witness statements. The
hearsay rule in civil proceedings had already been abolished in Scotland by the
Civil Evidence (Scotland) Act 1988. There was still a case for keeping the hearsay
rule in criminal proceedings, especially in jury trials, but jury trials in civil cases
were now exceedingly rare. The chief advantage of abolition of the rule would
be to simplify the rules of evidence and the elimination of technical objections
to the admissibility of relevant evidence. It should be for the parties to decide
what evidence would assist their case. In practice they would resort to hearsay
evidence only where it was the best they could ¬nd. The Law Commission™s
views were broadly con¬rmed in its ¬nal report published in 1993.284
The Government implemented the recommendation in the Civil Evidence
Act 1995. The same rules were extended to civil proceedings in magistrates™
courts as from April 1999.285
The guiding principle in the 1995 Act is that evidence is not to be excluded
on the ground that it is hearsay and that the court will decide what weight to
give it. The concept of hearsay evidence remains and it will often be regarded as
less persuasive than direct evidence, but it is no longer to be excluded on that
ground.
Parties are under a duty to give each other notice of their intention to adduce
hearsay evidence.286 Failure to give notice does not mean that the evidence
cannot be introduced but the court can take that failure into account in con-
sidering what weight to place on the evidence and when making costs orders
(s. 2).287 A party can call for cross-examination of a person whose statement
has been tendered as hearsay evidence and who has not been called to give oral

283
The Hearsay Rule in Civil Proceedings (Law Com No. 117, 1991).
284
The Hearsay Rule in Civil Proceedings (Law Com No. 216).
285
Magistrates™ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, SI 1999/681.
286
See now CPR, r. 33.
287
The Law Commission Report (Part III, para. 3.7) said that it appeared that the notice
requirement under the previous English legislation had ˜fallen into disuse™ and that ˜the
prescribed time limits were not complied with™. Under the Civil Evidence (Scotland) Act 1988
hearsay evidence is admissible without any requirement of advance notice. One commentator
suggested that we would have done better to follow the Scotland Act “ see J. Peysner, ˜Hearsay
is Dead! Long Live Hearsay™, 2 International Journal of Evidence and Proof, 1998, pp. 232“46.
452 The trial process


evidence (s. 3). Section 4 guides the court as to what factors to weigh in such
evidence, such as whether it would have been reasonable and practicable to have
called the maker of the statement and when the statement was made, e.g. was it
made contemporaneously, or whether there was any motive to conceal or mis-
represent matters.

Reform of the hearsay rule in criminal cases
In criminal cases, too, the hearsay rule was gradually transformed by statute “
a process that culminated in the Criminal Justice Act 2003.

1967“2003
• The Criminal Justice Act 1967, s. 9 made admissible written witness state-
ments where they were signed, a copy had been served in advance on the other
party and no counter-notice had been served objecting to the statement being
tendered in evidence. This was used very frequently. Section 2 of the 1967 Act
(later s. 102 of the Magistrates Courts Act 1980) made written statements
admissible in committal proceedings on a similar basis, namely, that they
were written, signed and tendered in advance. Again, this was much used. The
Criminal Procedure and Investigations Act 1996 carried it much further by
making any written statement and deposition admitted in evidence in com-
mittal proceedings admissible at trial providing the statement was signed by
a magistrate. The accused could object to the statement or deposition being
read as evidence at his trial but the trial court could overrule the objection if
it considered it ˜to be in the interests of justice™.288
• The Criminal Evidence Act 1965 reversed the House of Lords decision in
Myers v. DPP (p. 447 above) by providing that business and trade records
made under a duty to record the information admissible. This legislation was
superseded by the much wider provisions of the Police and Criminal Evidence
Act 1984, which in turn was superseded by the even wider provisions of the
Criminal Justice Act 1988.
PACE, s. 68 made admissible statements in any document that formed part
of a record compiled by a person under a duty or on the basis of information
supplied by someone acting under a duty, where the maker of the document
was unavailable to give evidence. The supplier of the information had to be
dead, ill or physically unable to give evidence, abroad or whose whereabouts
were not known, or it had to be a situation where it would not be reasonable
to expect him to remember the matters recorded.
Section 68 of PACE was replaced by Part II and Sch. 2 of the Criminal
Justice Act 1988. The purpose of Part II was to establish a new basis for the
admissibility of documentary hearsay in criminal proceedings. It classi¬ed
documents into three categories: ¬rst-hand hearsay, business documents and

288
Section 68 and Sch. 2, paras. 1 and 2. For a savage critique of this provision see R. Munday,
˜The Drafting Smokescreen™, 147 New Law Journal, 30 May 1997, p. 792; 6 June 1997, p. 860.
453 The exclusionary rules of evidence


documents which might fall into either category that had been prepared
speci¬cally for the purpose of criminal proceedings.
Section 23 made any ¬rst-hand hearsay admissible provided the maker was
unavailable to give evidence because he was dead or un¬t or abroad and it was
not reasonably practicable to secure his attendance, or that he could not be
found in spite of all reasonable steps taken. These provisions were similar to
those in s. 68 of the 1984 Act, but it was no longer possible to tender someone™s
hearsay statement on the basis that he could not reasonably be expected to
remember the matter. Nor could the maker™s statement be admitted when he
could not be identi¬ed after reasonable e¬orts made.
Section 24 considerably widened the previous exception for business records
by no longer requiring that the business document had to have been made by
someone acting under a duty. It was only necessary to prove that the informa-
tion contained in the document had been supplied by someone who had or
might reasonably be supposed to have had personal knowledge of the matter.
Where a statement was prepared for the purposes of a criminal investiga-
tion or prosecution it could be introduced in evidence on proof regarding the
absence of the maker that he was dead, un¬t, abroad etc. or that he did not
give evidence ˜through fear or because he [was] kept out of the way™.289
• The Runciman Royal Commission expressed the view that ˜in general, the fact
that a statement is hearsay should mean that the court places rather less
weight on it, but not that it should be inadmissible in the ¬rst place™.290 The
probative weight of the evidence should, it thought, ˜in principle be decided
by the jury for themselves™ (ibid). It recommended that ˜hearsay evidence
should be admitted to a greater extent than at present™ (ibid), but because of
the complexity of the hearsay rule it thought that the issues needed thorough
exploration by the Law Commission.
• The Government referred the question of the hearsay rule to the Law
Commission in April 1994 and a year later, in July 1995, the Commission pro-
duced a 266 page consultation paper.291 The consultation paper suggested that
it was right to retain the hearsay rule in criminal cases as a protection to the
accused. In civil cases the ¬nders of fact were judges; in criminal cases they
were jurors and magistrates, but the rules needed reform: ˜The rule is exces-
sively complex; this complexity leads to confusion, anomalies and wasted time,
both for the court and for the parties. The rule results in the exclusion of
cogent evidence even when it is the defence that seeks to adduce it™ (para. 9.2).


289
See further D.J. Birch, ˜The Criminal Justice Act “ The Evidence Provisions™, Criminal Law
290
Review, 1989, pp. 15“31. Runciman, p. 125, para. 26.
291
Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No. 138, 1995). For
commentary on the consultation paper see A.A.S. Zuckerman, ˜The Futility of Hearsay™,
Criminal Law Review, 1996, pp. 4“15; D.C. Ormerod, ˜The Hearsay Exceptions™, ibid,
pp. 16“28; P. Murphy, ˜Hearsay: the Road to Reform™, 1 International Journal of Evidence and
Proof, 1997, pp. 107“27 and ˜Practising Safe Hearsay: Surrender may be Inevitable, but
Shouldn™t We Take Precautions?™, ibid, 1997, pp. 105“21.
454 The trial process


The Law Commission proposed that as a general rule hearsay should
remain inadmissible subject to listed statutory exceptions. These would be
¬rst-hand oral or documentary hearsay of identi¬ed witnesses. The categories
of exception would be: (1) where the witness was dead or too ill to attend
court; (2) where such steps had been taken as were reasonably practicable to
secure his attendance but without success and he was abroad or could not be
found; or (3) where the witness refused to give evidence although physically
available. They would not extend to evidence of any fact of which the witness™s
oral evidence would not be admissible.
The Commission proposed that there should be a residual discretion to
admit hearsay falling outside the stated categories and other preserved excep-
tions which would extend to multiple as well as ¬rst-hand hearsay. This
should be available only if it appeared to the court that (1) the evidence was
so positively and obviously trustworthy that the opportunity to test it by
cross-examination could safely be dispensed with; and (2) the interests of
justice required that it be admitted.
The Commission also recommended that s. 69 of PACE regarding com-
puters should be repealed. In the absence of evidence to the contrary it should
be assumed that a computer or other mechanical instrument was functioning
properly. This was e¬ected by s. 60 of the Youth Justice and Criminal Evidence
Act 1999.
The Law Commission™s Final Report rea¬rmed the main recommenda-
tions in the consultation paper.292
In December 1998 the Government announced that it accepted all the recom-
mendations of the Law Commission™s Report “ lock, stock and barrel.293
However, the legislation to give e¬ect to this commitment was delayed for years
and in the end it was not implemented.
In October 2001 Lord Justice Auld™s Review of the Criminal Courts said of the
hearsay rule:
It is common ground that the present law is unsatisfactory and needs reform. It
is complicated, unprincipled and arbitrary in the application of the many excep-
tions. It can exclude cogent and let in weak evidence. It wastes court time in
requiring it to receive oral evidence when written evidence would do. And it con-
fuses witnesses and prevents them from giving their accounts in their own way.294


292
Law Com No. 245, Cm. 3670, 1997. For commentary on the Final Report see J.D. Jackson,
˜Hearsay: the Sacred Cow that Won™t be Slaughtered?™ 2 International Journal of Evidence and
Proof, 1998, pp. 166“90; C. Tapper, ™Hearsay in Criminal Cases: An Overview of Law
Commission Report No 245™, Criminal Law Review, 1997, p. 771; cf J. Spencer, ˜Hearsay
Reform: A Bridge not Far Enough?™, Criminal Law Review, 1996, p. 29. (Professor Spencer was
the original consultant to the Law Commission but withdrew because of his dissatisfaction
with the ˜unduly timid™ proposals in the consultation paper. He then became an adviser to
Lord Justice Auld on his review.)
293
House of Lords, Hansard, 17 December 1998, vol. 599, WA, col. 184.
294
Auld, p. 557, para. 96.
455 The exclusionary rules of evidence


The Law Commission™s proposals, Auld said, looked at individually, represented
useful improvements on the present law. They relaxed some of the rigidity of
the present rule through a widening of the exceptions and the introduction of
a limited inclusionary discretion, but ˜their implementation would not signi¬-
cantly change the present landscape nor, I believe, remove much of the scope
for dispute that dis¬gures and interrupts our present trial process™.295 He sug-
gested that a further review be undertaken with a view to making hearsay evi-
dence ˜generally admissible subject to the principle of the best evidence, rather
than generally inadmissible subject to speci¬ed exceptions as proposed by the
Law Commission™ (p. 560). Fact ¬nders should be trusted to assess the weight
of the evidence.
The Government™s July 2002 White Paper Justice for All said:
We believe the right approach is that, if there is good reason for the original
maker not to be able to give the evidence personally (for example, through illness
or death) or where records have been properly compiled by businesses, then the
evidence should automatically go in, rather than its admissibility being judged.
Judges should also have a discretion to decide that other evidence of this sort can
be given. This is close to the approach developed in civil proceedings (para. 4.61).
The Government did not adopt Lord Justice Auld™s recommendations that the
topic should be further studied by another committee nor that the best evidence
rule should be adopted. Instead the Criminal Justice Act 2003, Ch. 2 contained
a complete restatement “ as opposed to a codi¬cation “ of the law on hearsay in
criminal proceedings. Although the restatement retained much of the existing
law, it also represented a considerable shift toward admitting more evidence.
The hearsay provisions were brought into force in April 2005.

The Criminal Justice Act 2003, ss. 114“136296 The provisions start in s. 114(1)
by establishing that hearsay evidence, whether oral or written, is admissible
under four headings: (1) under statute; (2) under any common law rule specif-
ically preserved by the 2003 Act; (3) if all the parties agree; and (4) if ˜the court
is satis¬ed that it is in the interests of justice for it to be admissible™.
The last category (4) gives the judge the possibility of admitting hearsay that
does not ¬t into any other category. Depending on how the courts apply it, this
˜safety valve™ could prove to be of great importance. It could extend to any form
of hearsay evidence including multiple hearsay.297

295
Ibid, p. 559, para. 102.
296
For a commentary see for instance D. Birch, ˜Hearsay: Same Old Story, Same Old Song?™,
2004, Criminal Law Review, p. 556.
297
Lord Cooke of Thorndon in the House of Lords debate on the Bill suggested that this safety
valve was the most important provision in the hearsay reform package giving the courts a
˜¬‚exible weapon to achieve justice in criminal law™. He drew attention to the fact that ˜in other
common law countries, particularly Canada and New Zealand, the courts have moulded the
judge-made law so as to accept broadly a residual discretion to admit hearsay evidence of
su¬cient apparent reliability™. (House of Lords, Hansard, 18 September 2003, cols. 1109 et seq.)
456 The trial process


Section 114(2)(a)“(i) sets out the factors that the court must take into
account when deciding whether the evidence is reliable enough to admit under
subsection (1)(d) “ the probative value of the evidence and how important it is,
what other evidence there is, the circumstances in which it was made, the reli-
ability of the maker of the statement, how reliable it is that the statement had
been made, why oral evidence is not available, the di¬culty of challenging the
statement and the extent to which that di¬culty would prejudice the party
facing it.
Section 116(2) sets out a series of categories under which ¬rst-hand hearsay
evidence, oral or documentary,298 is automatically admissible, provided that the
witness is unavailable to testify because he is dead, ill, absent abroad, has disap-
peared or is in fear (which subsection (3) says must be widely construed and
includes fear of the death or injury of another person or of ¬nancial loss). The
identity of the person must be established to the court™s satisfaction. The dis-
cretion and leave provisions in ss. 25 and 26 of the 1988 Act have been removed
except where the witness is said to be in fear. Leave under subsection (2)(e) can
only be given if it is in the interests of justice after weighing the relative e¬ect of
admitting or excluding the evidence. The court is speci¬cally required to con-
sider whether a ˜special measures™ direction under the Youth Justice and
Criminal Evidence Act 1999 (giving evidence behind a screen, live link, video
recorded evidence etc. “ p. 432 above) might work as an alternative to admit-
ting the evidence as hearsay (subsection (4)).299
Business and other documents previously permitted under s. 24 of the
Criminal Justice Act 1988 are permitted under s. 117. Section 118 preserves
eight categories of hearsay evidence permitted at common law, including
˜public information™ (such as dictionaries, maps, birth certi¬cates or court
records), res gestae (pp. 449“50 above)300 and confessions. Dying declarations
have not been preserved, but they could be admissible under s. 116.
Under the previous law an assertion made in a previous statement did not
become evidence of its truth unless it was adopted by its maker in evidence.
Under ss. 119 and 120 reversing the traditional rule, virtually any earlier state-
ment by a witness that comes into evidence can be evidence of its own truth.
Section 119 applies to previous inconsistent statements.301 Section 120 applies
to previous consistent statements that become evidence to rebut an allegation
of recent fabrication and to previous statements put in evidence through cross-
examination. Similarly, under s. 120 a ˜recent complaint™ by a complainant can
be evidence of the truth of the allegation provided the complaint was made as

298
The equivalent previous provision in s. 23 of the 1988 Act was con¬ned to documentary
299
evidence. For the ECHR implications see Sellick [2005] Crim LR 722.
300
Res gestae is wider than s. 116 as it could cover the spontaneous statement of an unidenti¬ed
person as in Gibson (1887) 18 QBD 857.
301
For an example see Joyce and Joyce [2005] EWCA Crim 1785. Two eye witnesses to shootings
became hostile witnesses at trial. The Court of Appeal upheld the trial judge™s decision to
admit their earlier statements identifying the accused.
457 The exclusionary rules of evidence


soon as could reasonably be expected and the maker claims that at the time the
matter was fresh in his mind.302
Multiple hearsay is permitted if one of the stages of hearsay is admissible
under the provisions as a business document, a witness™s previous statement or
a recent complaint or all the parties agree to its admission or the court is satis-
¬ed that the interests of justice require its admission (s. 121).
Under s. 139 a witness is allowed to refresh his memory from statements
made at a time when his recollection is likely to have been ˜signi¬cantly
better™.303
When it is brought into force, s. 137 will permit the court to give leave for the
evidence of a witness to a serious o¬ence304 to be given in the form of a video
recording made when the event was still fresh in his memory. (As noted above,
Professor Birch has described this as ˜an explosive device™.305)
The Criminal Justice Act contains several di¬erent safeguards in addition to
the ˜safety valve™ in s. 114(1)(d):
• If there is any question as to the capability of a witness whose hearsay is sought
to have admitted, the court must exclude it unless the party that wants to
adduce the hearsay can show on a balance of probability that the witness was
capable (s. 123). It follows that the identity of the witness must ¬rst be estab-
lished.306 The test of capability is based on understanding questions put and
giving answers that can be understood.
• The court is required to admit evidence that undermines the absent witness™s
credibility or that shows that he made other inconsistent statements. The
court may also admit material that could have been put to the witness in
cross-examination if he had been there to testify (s. 124).
• If the judge considers that the hearsay evidence is so unconvincing as to make
a conviction unsafe he must either direct the jury to acquit or stop the case
and order a retrial (s. 125).
• The court is given a discretion to exclude hearsay evidence on the ground
that it would result in undue waste of time having regard to its likely value
(s. 126).

302
Professor Spencer (n. 292 above) suggested that the rule against using a witness™s previous
statement, also known as the rule against narrative, was based on two remarkable
propositions “ that memory improves with time and that the stress of a trial enhances the
power of recall. A further argument against the rule, as Auld noted in his report, is that the
problem of inability to cross-examine the witness does not apply to the previous statements of
someone in the witness box. Professor Birch, referring to these weighty arguments, said she
found it astonishing that the Government missed the opportunity of abolishing the rule (n.
296 above at p. 570).
303
Under the previous law there was a requirement that the earlier statement have been
contemporaneous with the event.
304
An o¬ence triable only on indictment or prescribed either-way o¬ences (s. 137(1)).
305
Note 296 above at p. 572.
306
Article 6(3)(d) of the ECHR guarantees that the defendant has the ˜right to examine or have
examined witnesses against him™. He cannot challenge the witness unless he has been
identi¬ed.
458 The trial process


Rules of court require that in some circumstances notice be given of an intention
to rely on hearsay evidence and counter notices setting out objections.307
Speaking on the Second Reading of the Bill in the House of Lords, Lord
Woolf, Lord Chief Justice, said of the hearsay provisions:308
22. We question whether the complexity of the provisions is necessary. What has
happened is that the complex common law rules are being replaced by complex
statutory rules, some of which are a repetition of the common law rules.
23. What happens now in civil proceedings is that a judge has a general dis-
cretion to determine how matters are to be proved. The judge has to exercise the
discretion in the interests of justice . . . If it is not ¬rst-hand evidence, then it has
the disadvantage that it has not been tested by cross-examination. Whether this
matters depends on the circumstances. If we have got to the stage where it is con-
sidered that it is safe to allow juries to hear hearsay evidence, then we must be
accepting that they can be trusted to use that evidence in accordance with the
directions of the judge. Instead of the detailed and complex provisions which
are contained in Chapter 2, what is needed is a simple rule putting the judge in
charge of what evidence is admissible and giving him the responsibility of ensur-
ing that the jury uses the evidence in an appropriate manner.
The Court of Appeal has on several occasions ruled that the statutory hearsay
provisions are not per se incompatible with Article 6(3)(d) of the ECHR.309
Compatibility depends on a variety of considerations and ultimately on the
exercise by the court of judicial discretion.310

US Supreme Court and hearsay In marked contrast to the reform of the
hearsay rule in England, see the 2004 decision of the US Supreme Court in
Crawford v. Washington.311 The court insisted on the defendant™s right guaran-
teed by the Sixth Amendment to confront prosecution witnesses and to test
their evidence by cross-examination. In a murder trial the trial court allowed in
evidence of a recorded statement of the defendant™s wife made during police
interrogation to the e¬ect that the killing was not self-defence. The trial court™s


307
An amendment in 2006 to the Criminal Procedure Rules Part 34 limited the notice
requirement to cases where it is in the interests of justice for it to be admitted (CJA 2003,
s. 114(d)), or the witness is unavailable (s. 116), or the evidence is a business or other such
document (s. 117) or it is multiple hearsay (s. 121).
308
In his ˜Background Notes™ laid in the library of the House of Lords and published by the
writer “ see n. 248, p. 441 above.
309
Sellick [2005] EWCA Crim 651; Al Khwaja [2005] EWCA Crim 2697; Xhabri [2005] EWCA
3135; Tahery [2006] EWCA Crim 529. See also the decision of the Judicial Committee of the
Privy Council in Grant v. The State [2006] UKPC 2, [2006] Crim LR 837.
310
However see the decision in E where the Court of Appeal upheld the trial judge™s ruling not to
admit the complainant™s video evidence in a rape case. The decision in Sellick was
distinguished. Although satis¬ed that the complainant was un¬t (CJA 2003, s. 116(2)(b)) and
in fear (CJA 2003, s. 116(2)(e)) and that the defendant was not responsible, the judge
concluded that the hearsay evidence was the sole or decisive evidence in the case and that it

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