Hearsay, Bad Character and Trust in the Jury: Irish and English Contrasts

AuthorMark Coen
Published date01 July 2013
Date01 July 2013
Subject MatterArticle
and trust in the jury:
Irish and English
By Mark Coen*
Lecturer in Law, School of Law and Government, Dublin City
Abstract This article will consider the extent to which the exclusionary
common law rules relating to hearsay and bad character, which existed for
hundreds of years in England and Wales and still apply in Ireland, were
informed by distrust of jury capabilities. The article will focus on this discrete
issue, as opposed to conducting a wide-ranging critique of the relevant rules. It
will be demonstrated that the rationales for the radical reform of these rules in
England and Wales were partly couched in terms of increased faith in juror
competence. The exclusionary rules relating to hearsay and bad character in
Ireland and the reformed English law, which is inclusionary in effect, will be
analysed in light of empirical jury studies examining the ability of jurors to
evaluate these two types of evidence. The capacity for different approaches to
certain types of evidence to reflect varying conceptions of the jury and its
perceived competence is a central theme of this article, as is the importance of
testing juror performance empirically.
Keywords Hearsay evidence; Bad character evidence; Jury research; Ireland
Hearsay and bad character: the common law rules
n this section a brief explanation of the common law rules of hearsay and
bad character will be given. The focus will be on the broad tenor of these
exclusionary rules. The common law rules, supplemented by statute,
form the relevant law in Ireland at present and are very similar to the law which
* Email: mark.coen@dcu.ie. I would like to thank Professor Colin Tapper, Professor Ivana Bacik,
Conor Noonan and the anonymous reviewer for their helpful comments on an earlier draft of this
was in force in England and Wales prior to the enactment of the Criminal Justice
Act 2003.1
Hearsay is a general common law rule, subject to many exceptions, that an
out-of-court statement cannot be relied upon for the truth of the matter it asserts.2
Evidence of bad character is inadmissible at common law unless it falls within the
‘similar fact’ exception. This applies where there is similarity of commission
between a past offence and the offence with which the accused is charged. In the
famous example the convicted burglar who previously left a ‘humorous limerick’3
on the wall of his victim’s house could have that evidence admitted at his trial for
a subsequent burglary, at the scene of which the poem was also written. Such
evidence is adduced in order to demonstrate a propensity to commit the offence.4
In Ireland,5statute also permits the use of bad character evidence where the
accused puts his character in issue by claiming to be of good character or by
attacking the character of others.6In this situation his bad character is adduced
for the purpose of damaging the accused’s credibility in the eyes of the jury, not to
demonstrate a propensity to commit the offence.7This provision is based on s. 1(f)
of the Criminal Evidence Act 1898, which was the relevant provision in England
and Wales prior to the enactment of the Criminal Justice Act 2003.
Exclusionary rules and perceived juror (in)competence
Before analysing the relationship between the hearsay and character rules and the
jury it should be stated that many of the exclusionary rules owe nothing to jury
considerations. An obvious example in Ireland is the exclusionary rule relating to
unconstitutionally obtained evidence, which is firmly rooted in the rationale of
vindicating constitutional rights.8In the pages which follow, the links between
1 The position in England and Wales subsequent to the 2003 Act will be considered in due course.A
small number of provisions in the 2003 Act apply to Scotland and Northern Ireland, but the
hearsay and bad character provisions are not among them. See s. 337 of the 2003 Act.
2 See J. R. Spencer, Hearsay Evidence in Criminal Proceedings (Hart: Oxford, 2008).
3Boardman vDPP [1975] 3 AC 421 at 454, per Lord Hailsham.
4 See, e.g., the Irish case of People (DPP) vBK [2000] 2 IR 199 at 210–211, per Barron J.
5 ‘Ireland’ is used throughout this article to refer to the 26 county jurisdiction which excludes
Northern Ireland. Article 4 of the Constitution of Ireland, 1937 states: ‘The name of the State is Éire,
or, in the English language, Ireland’. Italics in original.
6 Section 1(f) of the Criminal Justice (Evidence) Act 1924 contains the Irish law on this point.
7 See, e.g., People (AG) vBond [1966] IR 214.
8 The leading case is People (AG) vO’Brien [1965] IR 142. For a discussion of the rationale underpinning the
O’Brien rule of exclusion, see Y. Daly, ‘Unconstitutionally Obtained Evidence in Ireland: Protectionism,
Deterrence and the Winds of Change’ (2009) 19 Irish Crim LJ 40. It has been p ointed out that constitu-
tional rights could be vindicated by means other than excluding the evidence. See J. Jackson, ‘Human
Rights, Constitutional Law and Exclusionary Safeguards in Ireland’ in P. Roberts and J. Hunter (eds.),
Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions (Hart: Oxford, 2012) 119.

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