Hearsay Evidence In Criminal Proceedings Second Edition
The Criminal Justice Act 2003 re-wrote the hearsay evidence rule for the purpose of criminal proceedings, enacting the recommendations of the Law Commission together with some proposals from the Auld Review. In 2008, Professor Spencer wrote a book explaining the new law, intended for practitioners as well as academics. Following the style of his earlier book about the new law on bad character evidence, the core of the hearsay book was a section-by-section commentary on the relevant provisions of the Act, discussing the case law that had interpreted them. Since the appearance of the first edition, the new law on hearsay evidence has been the subject of a spectacular exchange between the UK Supreme Court and the European Court of Human Rights, the effects of which the Court of Appeal has interpreted in several leading cases. In this new edition, the commentary is revised to take account of these developments. As in the first edition, the commentary is preceded by chapters on the history of the hearsay rule, and the requirements of Article 6(3)(d) of the European Convention on Human Rights. It is followed by an appendix containing the text of the statutory provisions and a selection of the leading cases.
Hearsay rule and the rise and fall of the exclusionary rules of evidence
Scope and evolution of the hearsay rule
Hearsay rule in criminal law as it stood before the 2003 reform: Justifications for the rule
Criticisms of the hearsay rule
Hearsay rule as seen by legal writers
The 'directness principle' or 'best evidence' approach
Abolition of the hearsay rule in civil proceedings
Background to the 2003 reform: Criminal Law Revision Committee, Fraud Trials Committee, Law Commission and Auld Review
Reform: Criminal Justice Act 2003, Part 11, Chapter 2
Conclusion: provisional assessment of the reform
Date of entry into force
2 Hearsay and the European Convention on Human Rights
The confrontation principle
ECHR, Article 6 (3)(d)
Who is a 'witness' for the purposes of ECHR, Article 6(3)(d)?
What is meant by 'a right to examine or have examined witnesses against him'?
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)?
The defendant's right to confrontation-the case for a new system of taking evidence ahead of trial
3 The scope of the reform, the shape of the new exclusionary rule and the new scheme of exceptions
General scope of the new law
Abolition of the common law exclusionary rule: the demise of Kearley
The new exclusionary rule: CJA 2003, sections 114(1) and 115
The new definition of hearsay: conclusion
Scheme of exceptions
4 Hearsay admitted by agreement
5 The 'inclusionary discretion' and the general discretion to exclude
Discretionary inclusion under CJA 2003, section 114(1)(d): 'safetyvalve' or alternative tap?
What are 'the interests of justice'?
Particular applications of section 114(1)(d)
Discretionary exclusion: PACE, section 78 and CJA 2003, section 126
6 Statements of witnesses who are unavailable (CJA 2003, section 116)
History: earlier provisions
The new provision: CJA 2003, section 116
7 Documentary hearsay (CJA 2003, section 117)