The Common Enterprise Exception to the Hearsay Rule
| Author | Keith Spencer |
| Published date | 01 May 2007 |
| Date | 01 May 2007 |
| DOI | http://doi.org/10.1350/ijep.2007.11.2.106 |
| Subject Matter | Article |
106 (2007) 11 E&P 106–133 E & P
THE COMMON ENTERPRISE EXCEPTION TO THE HEARSAY RULE
The common enterprise
exception to the
hearsay rule
By Keith Spencer*
Practising barrister at the Bar of Ireland
Abstract This article undertakes a comparative examination of the common
enterprise exception to the hearsay rule, in order to paint a clear picture of the
requirements and functioning of the rule in England and Wales. Four possible
underlying rationales for the common enterprise exception—agency, res gestae,
admissions and necessity—are first identified and evaluated. The doctrinal
parameters of the exception are then explored, in terms of its three principal
elements: the furtherance, pendency, and independent evidence requirements.
Different mutations of the rule across various common law jurisdictions, partic-
ularly Canada and the United States, are considered. Finally, an exploration of
subsidiary issues such as the required order of proof, the operation of the rule in
relation to acquitted conspirators, and the conjunction of conspiracy counts
with related substantive charges serves to underline the tensions between this
traditional exception to the hearsay rule and legislatively enshrined guarantees
of fair trial.
oncerted criminal activity is perceived as more harmful to society than
lone criminal actors. The offence of conspiracy was created in order to
combat group crime, but the offence is unlike others in that the actus reus
is the agreement between the parties to commit the crime, and all that is
necessary to prove conspiracy is a subjective meeting of minds concerning the
common criminal goal.1This somewhat contrived adaptation of the criminal law,
and the dearth of direct evidence typically available to prosecutors when trying
such an inherently vague crime, has led to a corresponding manipulation of the
laws of evidence in order to secure convictions for this incipient offence. Aside
from circumstantial evidence of the conspiracy, which itself can be minimal
1 See G. Orchard, ‘“Agreement” in Criminal Conspiracy’ [1974] Crim LR 297.
C
* BCL (UCD) LLM (Dub) BCL (Oxon) BL (King’s Inns), email: kspencer@lawreform.ie. Thanks are due to
Colin Tapper, David Ormerod and Paul Roberts for their helpful comments.
where the conspiracy has been caught early, the declarations of the conspirators
were, in the past, often the only available evidence of the conspiracy.2It is clear
that this evidence amounts to hearsay. The main evidential response to this
conundrum, which usually proves instrumental in securing convictions, is the
co-conspirators or common enterprise (these terms are used interchangeably)
exception to the hearsay rule which renders declarations made by a co-conspirator
in the course of, and in furtherance of, the conspiracy admissible against every
other co-conspirator, or person involved in the common enterprise. This is an
exception to the general rule that A is not to be prejudiced by the acts or state-
ments of B, not made in his presence, and is an exception to the hearsay rule by
permitting reliance on B’s statements as evidence of their truth.3The rule first
appeared and then evolved in the English treason trials4of the late 18th century
when declarations of co-conspirators were used to convict of treason those who
sought to import the French Revolution to British soil.
The co-conspirators exception has attracted much criticism over the years,5and in
particular has been attacked for lacking any stable rationale or clear definition.
While many of these criticisms have merit, the rule is, procedurally, a different
creature in different jurisdictions. Before attempting its evaluation, the species of
the rule in question must therefore first be identified.
This article aims to arrive at an accurate statement of this somewhat obscure
doctrine in English law, to expose its many difficulties, and to highlight some
points of distinction between England and other common law countries. First, the
various rationales for the rule are set out and an attempt is made to deduce, by
an examination of their respective merits, the best justification for the rule.
The rule’s scope and definitional elements are then considered. Thirdly, the
functioning of the rule must be examined, especially the stage at which the court
should determine the admissibility of this type of evidence, the nature of the
threshold foundation evidence sufficient to support its admission, and whether
hearsay evidence may itself constitute part of such foundation evidence. Lastly,
the operation of the rule will be considered in relation to substantive offences.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 107
THE COMMON ENTERPRISE EXCEPTION TO THE HEARSAY RULE
2 Admittedly this situation is improving, in an era of intelligence-led policing and with the prolif-
eration of surveillance evidence.
3 P. Murphy and E. Stockdale (eds), Blackstone’s Criminal Practice 2006 (Oxford University Press: Oxford,
2006) F16.35 (p. 2570).
4The Trial of Thomas Hardy, 24 How St Tr 200 (1794); see also The Trial of William Lord Russell, 9 How St Tr
577 at 604 (1683).
5 R. S. Payne, ‘The Co-conspirators Exception to the Hearsay Rule: The Limits of its Logic’ (1976–77) 37
Louisiana Law Review 1101.
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