‘Hearsay‐fiddles’ in the House of Lords
| Author | Andrew L.‐T. Choo,John Hartshorne |
| DOI | http://doi.org/10.1111/1468-2230.00207 |
| Date | 01 March 1999 |
| Published date | 01 March 1999 |
‘Hearsay-fiddles’ in the House of Lords
John Hartshorne* and Andrew L.-T. Choo**
The hearsay rule provides that a statement made otherwise than by a person giving
oral evidence in court is inadmissible as evidence of the truth of its facts. A hearsay
statement becomes admissible if one of the common law or statutory exceptions to
the rule applies.1In 1964 the House of Lords held in Myers vDPP2that the list of
common law exceptions to the hearsay rule was closed; any further exceptions
would have to be created by Parliament. Confessions of a defendant represented a
well established common law exception to the hearsay rule.3Arguably this
exception only permitted the prosecution to adduce the confession; any exception
permitting a defendant to adduce a confession of a co-defendant, in circumstances
where that confession had either been excluded for the prosecution or not relied
upon by them, was one unknown to English law.4In the recent decision of the
House of Lords in RvMyers,5however, their Lordships allowed the confession of
a co-defendant not relied upon by the prosecution to be adduced by a defendant as
evidence of the truth of its facts. It will be argued that this represents the creation
of a new common law exception to the hearsay rule by means of a ‘hearsay-
fiddle’.6The aim of the House of Lords was clear; to avoid the mechanical
application of the hearsay rule in a way which would shield the truth. This is to be
applauded. Yet by resorting to a ‘hearsay-fiddle’ rather than a more direct
acknowledgment that the law of hearsay was being recast in a less restrictive
mould, the House of Lords has left uncertainty about the operation of this new
exception. We aim in this note to illustrate this uncertainty and to evaluate the
soundness of their Lordships’ reasoning. In doing so, we highlight the dangers of
resorting to ‘fiddles’ as opposed to changing the law in an open and coherent
manner.
The facts and background
Myers and Quartey were jointly charged with the murder by stabbing of a taxi
driver. The defendants ran ‘cut-throat’ defences, each alleging that the other was
ßThe Modern Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
290
* Faculty of Law, University of Leicester.
** Department of Law, Brunel University.
1 See A. L.-T. Choo, Evidence: Text and Materials (London: Longman, 1998) 321–358.
3 This common law exception has now been placed on a statutory footing by section 76(1) of the Police
and Criminal Evidence Act 1984 which provides: ‘In any proceedings a confession made by an accused
person may be given in evidence against him in so far as it is relevant to any matter in issue in the
proceedings and is not excluded by the court in pursuance of this section.’
4 Opinion is divided on the question of whether section 76(1) permits a defendant as well as the
prosecution to adduce a confession. See M. Zander, The Police and Criminal Evidence Act 1984
(London: Sweet & Maxwell, 3rd ed, 1995) 219.
5 [1997] 3 WLR 552. For discussion of this decision elsewhere see M. Hirst, ‘Confessions as Proof of
Innocence’ (1998) 57 CLJ 146.
6 An expression borrowed from D. J. Birch, ‘Hearsay-Logic and Hearsay-Fiddles: Blastland Revisited’
in P. Smith (ed), Criminal Law: Essays in Honour of J. C. Smith (London: Butterworths, 1987).
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