The Current Hearsay Rule and Proposals for Reform
| Author | JN Spencer |
| DOI | 10.1177/002201839606000106 |
| Published date | 01 February 1996 |
| Date | 01 February 1996 |
| Subject Matter | Article |
THE
CURRENT
HEARSAY
RULE
AND
PROPOSALS
FOR
REFORM
IN
Spencer"
Hearsay consists of second-hand evidence passed along the grapevine as
opposed to what is generally regarded as more reliable first-hand evidence.
Ironically and for the confusion
of
everybody, first-stage second-hand
hearsay evidence has been statutorily described in the Civil Evidence Act
1968 and the Criminal Justice Act 1988 as first-hand hearsay, although in
its basic meaning this might be described as a contradiction in terms. The
latest information on the legal grapevine is that the hearsay rule is becoming
increasingly unpopular. The Law Commission in its Consultation Paper
No 138 reviewed the law, set out a number
of
options, and recommended
reform.
There have always been a large number
of
exceptions to the hearsay
rule in both criminal and civil proceedings. These include confessions,
admissions, statements made by deceased persons or made in the settled
expectation
of
death, statements in the course of the res gestae and certain
statements in public documents. These long-standing exceptions have been
widened in recent years by numerous statutory provisions; the Evidence Act
1938, the Criminal Evidence Act 1965, the Criminal Justice Act 1967, the
Civil Evidence Act 1968, the Police and Criminal Evidence Act 1984, the
Criminal Justice Act 1988 and the Children Act 1989. The position has
nearly been reached when it will be simpler to admit hearsay evidence than
exclude it, so many are the recognised common law and statutory exceptions.
These exceptions are so wide and the provisions so confusing that the law is
being brought into disrepute.
It
would not be practical to review all these statutory provisions in detail,
but some are worthy
of
further examination if only to draw out some of the
difficulties and inconsistencies, together with some
of
the more recent case
law on the subject.
The decision in B1Ilstiand
No one can fail to have concern over the conclusion reached in RvB/ast/and
[1986]
AC 41, even though it was a unanimous decision of the House of
Lords. The defendant was convicted of a murder arising out of a homosexual
encounter. Evidence that a third party identified as Mark was at the scene
and knew about the murder was excluded as irrelevant because there might
• MA, LLM, Barrister. This article was accepted for publication before the Civil Evidence
Act 1995 received the Royal Assent on 8 November 1995.
77
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