Preface to the Second Edition

v

Abbreviations

xi

Table of Cases

xiii

Table of Legislation

xxv

Table of Treaties

xxxvi

1.

Introduction

1

Hearsay rule and the rise and fall of the exclusionary rules of evidence

2

Scope and evolution of the hearsay rule

5

Hearsay rule in criminal law as it stood before the 2003 reform: justifications for the rule

9

Criticisms of the hearsay rule

14

Hearsay rule as seen by legal writers

20

The `directness principle' or `best evidence' approach

22

Abolition of the hearsay rule in civil proceedings

25

Background to the 2003 reform: Criminal Law Revision Committee, Fraud Trials Committee, Law Commission and Auld Review

27

Reform: Criminal Justice Act 2003, Part 11, Chapter 2

32

Conclusion: provisional assessment of the reform

35

Scope

39

Date of entry into force

40

2.

Hearsay and the European Convention on Human Rights

41

The confrontation principle

41

ECHR, Article 6 (3)(d)

43

Who is a `witness' for the purposes of ECHR, Article 6(3)(d)?

46

What is meant by `a right to examine or have examined witnesses against him'?

48

To what extent, if any, is it ever possible to base a conviction on the evidence of a witness or witnesses whom the defendant was unable to `examine or have examined', without infringing his rights under ECHR, Article 6(3)(d)?

55

The defendant's right to confrontation---the case for a new system of taking evidence ahead of trial

71

3.

The scope of the reform, the shape of the new exclusionary rule and the new scheme of exceptions

75

General scope of the new law

75

Abolition of the common law exclusionary rule: the demise of Kearley

75

The new exclusionary rule: CJA 2003, sections 114(1) and 115

78

The new definition of hearsay: conclusion

88

Scheme of exceptions

92

4.

Hearsay admitted by agreement

95

5.

The `inclusionary discretion' and the general discretion to exclude

101

Discretionary inclusion under CJA 2003, section 114(1)(d): `safety-valve' or alternative tap?

101

What are `the interests of justice'?

106

Particular applications of section 114(1)(d)

111

Discretionary exclusion: PACE, section 78 and CJA 2003, section 126

122

6.

Statements of witnesses who are unavailable (CJA 2003, section 116)

129

History: earlier provisions

129

The new provision: CJA 2003, section 116

131

7.

Documentary hearsay (CJA 2003, section 117)

151

History

151

Underlying issue: `records' of different types

152

CJA 2003, section 117

153

Extra conditions for the admissibility of police records

161

Discretion to exclude

163

Documentary evidence and real evidence

164

CJA 2003, section 117: conclusion

164

8.

Other statutory exceptions

165

9.

Preserved common law exceptions (CJA 2003, section 118)

171

Public information, etc

172

Reputation as to character

173

Reputation or family tradition

174

Res gestae

176

Confessions, etc

180

Admissions by agents, etc

181

Common enterprise

182

Expert evidence

185

10.

Confessions (and other extra-judicial statements by defendants)

187

Introduction

187

Defendant's extra-judicial confession as evidence for the prosecution

189

Defendant's extra-judicial `non-confession' as evidence for the defence: mixed statements', etc

201

Extra-judicial statement of one co-defendant as evidence against another

203

Extra-judicial statements of one co-defendant as evidence for another

209

Defendant's extra-judicial statements: conclusion

212

11.

Multiple hearsay

213

12.

The rule against narrative

221

Introduction

221

Rule against narrative is retained

225

Rules about `refreshment of memory' are relaxed

226

Other common law exceptions to the rule are reformed and put into statutory form

229

Where the previous statement of a witness is admissible, it is now `evidence of any matter stated in it'

236

A practical point: a previous statement, if in documentary form, must not normally be given to the jury when it retires

243

The rule against narrative: conclusion

243

13.

Videotaped evidence-in-chief

245

Introduction

245

Background

245

Annex: Youth Justice and Criminal Evidence Act 1999, section 27

252

14.

Other matters: experts (CJA 2003, section 127) and proof of documents (section 133)

255

Expert evidence: preparatory work

255

Documents: evidential status of a copy

257

15.

Practical issues

261

Taking, recording and preservation of statements, and the rules on access to them

261

Evidence on commission

266

Requirement to give notice of hearsay evidence: criminal procedure rules

267

Deciding applications to admit hearsay evidence and applications for hearsay to be excluded

269

Time and place for deciding on the application

272

Giving reasons for the decision

272

Credibility of non-witnesses whose statements are admitted

273

Enhanced status of a witness's previous statements

275

Stopping the case where the evidence is unconvincing

277

Directing juries

279

Appendix I

Criminal Justice Act 2003, sections 114--141

283

Appendix II

The Criminal Procedure Rules, Part 34

301

Appendix III

Sections on hearsay evidence from the Crown Court Bench Book Companion

311

Appendix IV

Leading Cases

321

R v Twist

321

R v Horncastle and others (CA)

333

R v Horncastle and others (SC)

372

Al-Khawaja and Tahery v UK

402

R v Riat, Doran, Wilson, Clare and Bennett

431

R v Tahery

453

Index

459