Hearsay Evidence In Criminal Proceedings Second Edition by J. R. Spencer


Hearsay Evidence in Criminal Proceedings By J. R. Spencer

Author J. R. Spencer
Publication Date Feb, 2014
ISBN 9781849464635
Publisher Hart Publishing


The Criminal Justice Act of 2003 rewrote the hearsay evidence rule for criminal cases, incorporating the Law Commission's recommendations as well as several Auld Review ideas.

Professor Spencer published a book in 2008 that explains the new law for both practitioners and scholars. The crux of the hearsay book was a section-by-section commentary on the relevant sections of the Act, addressing the case-law that had interpreted them, in the vein of his earlier book about the new statute on bad character evidence.

The new legislation on hearsay evidence has been the subject of a dramatic interaction between the UK Supreme Court and the European Court of Human Rights since the publication of the first edition, the consequences of which the Court of Appeal has interpreted in numerous major cases. The commentary has been updated to reflect these changes in this new version.

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, much as it was in the original version. The wording of the legislative provisions and a selection of prominent decisions are included in an appendix.

TABLE OF CONTENTS of Hearsay Evidence In Criminal Proceedings

  1. Introduction
  • 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 Scope Date of entry into force
  1. 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
  1. 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
  1. Hearsay admitted by agreement
  1. 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
  1. Statements of witnesses who are unavailable (CJA 2003, section 116)
  • History: earlier provisions
  • The new provision: CJA 2003, section 116
  1. Documentary hearsay (CJA 2003, section 117)
  • History
  • Underlying issue: 'records' of different types
  • CJA 2003, section 117
  • Extra conditions for the admissibility of police records
  • Discretion to exclude
  • Documentary evidence and real evidence
  • CJA 2003, section 117: conclusion
  1. Other statutory exceptions
  1. Preserved common law exceptions (CJA 2003, section 118)
  • Public information, etc
  • Reputation as to character
  • Reputation or family tradition
  • Res gestae
  • Confessions, etc
  • Admissions by agents, etc
  • Common enterprise
  • Expert evidence
  1. Confessions (and other extra-judicial statements by defendants)
  • Introduction
  • Defendant's extra-judicial confession as evidence for the prosecution
  • Defendant's extra-judicial 'non-confession' as evidence for the defence: mixed statements', etc
  • Extra-judicial statement of one co-defendant as evidence against another
  • Extra-judicial statements of one co-defendant as evidence for another
  • Defendant's extra-judicial statements: conclusion
  1. Multiple hearsay
  1. The rule against narrative
  • Introduction
  • Rule against narrative is retained
  • Rules about 'refreshment of memory' are relaxed
  • Other common law exceptions to the rule are reformed and put into statutory form
  • Where the previous statement of a witness is admissible, it is now 'evidence of any matter stated in it'
  • A practical point: a previous statement, if in documentary form, must not normally be given to the jury when it retires
  • The rule against narrative: conclusion
  1. Videotaped evidence-in-chief
  • Introduction
  • Background
  • Annex: Youth Justice and Criminal Evidence Act 1999, section 27
  1. Other matters: experts (CJA 2003, section 127) and proof of documents (section 133)
  • Expert evidence: preparatory work
  • Documents: evidential status of a copy
  1. Practical issues
  • Taking, recording and preservation of statements, and the rules on access to them
  • Evidence on commission
  • Requirement to give notice of hearsay evidence: criminal procedure rules
  • Deciding applications to admit hearsay evidence and applications for hearsay to be excluded
  • Time and place for deciding on the application
  • Giving reasons for the decision
  • Credibility of non-witnesses whose statements are admitted
  • Enhanced status of a witness's previous statements
  • Stopping the case where the evidence is unconvincing
  • Directing juries

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