The Safety-Valve: Discretion to Admit Hearsay Evidence in Criminal Proceedings
| Date | 01 August 2012 |
| Author | Emma Piasecki,Michael Stockdale |
| Published date | 01 August 2012 |
| DOI | 10.1350/jcla.2012.76.4.783 |
| Subject Matter | Article |
The Safety-valve: Discretion to
Admit Hearsay Evidence in
Criminal Proceedings
Michael Stockdale* and Emma Piasecki†
Abstract Section 114(1)(d) of the Criminal Justice Act 2003 gave the
criminal courts discretion to admit hearsay evidence in the interests of
justice. The Law Commission envisaged that the courts would only exer-
cise this inclusionary discretion in exceptional circumstances. Whilst the
admissibility threshold created by s. 114(1)(d) is not as high as the Law
Commission had intended, the recent jurisprudence suggests that the
courts will exercise the s. 114(1)(d) discretion much as the Law Commis-
sion had anticipated except that, contrary to the Law Commission’s inten-
tions, there is authority for the proposition that where a confession is
admitted under s. 114(1)(d) it may be admissible against persons other
than its maker and there is also authority for the proposition that the
hearsay evidence of a witness who cannot be identified is not admissible
under s. 114(1)(d).
Keywords Evidence; Hearsay; Admissibility; Inclusionary discre-
tion; Law Commission
In its Report Evidence in Criminal Proceedings: Hearsay and Related Topics,1
the Law Commission, as part of its proposals to reform the hearsay rule
in the context of criminal proceedings, recommended that the criminal
courts should possess a ‘limited inclusionary discretion’ (which it re-
ferred to as a safety-valve) to admit hearsay evidence which was not
admissible under any other hearsay exception in circumstances in
which the interests of justice required its admission.2The purpose of this
proposed discretion was to prevent injustice that could potentially arise
if hearsay evidence was excluded.3
The Law Commission’s proposed inclusionary discretion was given
statutory force in the form of s. 114(1)(d) of the Criminal Justice Act
2003. Examination of the Law Commission’s Report provides some
guidance concerning the nature of those circumstances in which the
Law Commission envisaged that the courts would exercise their discre-
tion so as to admit hearsay evidence. The hearsay provisions of the 2003
Act have been in force since 4 April 2005 and the appellate courts have
* Director of the Centre for Criminal and Civil Evidence and Procedure, School of
Law, Northumbria University; e-mail: m.w.stockdale@northumbria.ac.uk.
† Director of Barristers’ Professional Training, School of Law, Northumbria
University; e-mail: emma.piasecki@northumbria.ac.uk.
1 Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics, Law
Com. Report No. 245 (1997), available at http://lawcommission.justice.gov.uk/docs/
lc245_evidence_in_criminal_proceedings_hearsay_and_related_topics.pdf, accessed 13
June 2012.
2 Ibid. at paras 1.39, 6.53 and 8.133.
3 Ibid. at paras 1.39 and 8.133.
314 The Journal of Criminal Law (2012) 76 JCL 314–335
doi:10.1350/jcla.2012.76.4.783
now had the opportunity to consider the ambit of s. 114(1)(d) on a
variety of occasions. The purpose of this article is to examine the
jurisprudence relating to s. 114(1)(d) in order to determine the ap-
proach of the appellate courts to the exercise of the s. 114(1)(d) discre-
tion and to consider the extent to which the judicial approach equates
with or diverges from the Law Commission’s vision concerning the
utilisation of its safety-valve inclusionary discretion by the criminal
courts.
The safety-valve: brief legislative history
Under the initial version of the safety-valve, in cl. 9 of the Law Commis-
sion’s draft Criminal Evidence Bill, hearsay evidence would have been
admissible if the court was satisfied that ‘despite the difficulties there
may be in challenging the statement, its probative value is such that the
interests of justice require it to be admissible’. The Law Commission’s
intention was that, in determining the probative value of a hearsay
statement, the matters that the court would consider would include the
degree of relevance of the hearsay evidence, the circumstances in which
the hearsay statement was made, the extent to which the hearsay
statement supplied evidence that would not otherwise have been avail-
able and the creditworthiness of the person who made the hearsay
statement.4In relation to the interests of justice element of cl. 9, the Law
Commission envisaged that the court would consider why the maker of
the hearsay statement could not give oral evidence, the extent to which
the hearsay evidence could be controverted by the defence and unfair-
ness to the accused.5
The version of the safety-valve that appeared as cl. 98(1)(d) of the
Criminal Justice Bill as originally introduced in the House of Commons
on 21 November 2002 differed from the Law Commission’s cl. 9 formu-
lation in rendering hearsay evidence admissible if ‘the court is satisfied
that, despite the difficulties there may be in challenging the statement, it
would not be contrary to the interests of justice for it to be admissible’.
Moreover, whereas the Law Commission had envisaged that the court
would consider a variety of factors when considering the probative
value and interests of justice elements of its admissibility test, cl. 98(2) of
the government’s Criminal Justice Bill required the court to consider a
number of specified factors when deciding whether hearsay evidence
should be admitted under cl. 98(1)(d). The reason for the reduction in
the admissibility threshold from one where hearsay evidence was only
admissible if the interests of justice required the admission of the evid-
ence to one where hearsay evidence was admissible unless this was
contrary to the interests of justice was that the government, having
considered recommendations made by Sir Robin Auld,6had decided that
4 Above n. 1 at para. 8.142.
5 Ibid. at para. 8.142.
6 Auld LJ, Review of the Criminal Courts of England and Wales (2001) para. 104,
available at http://webarchive.nationalarchives.gov.uk/+/http://www.criminal-courts-
review.org.uk/ccr-00.htm, accessed 13 June 2012.
The Safety-valve: Discretion to Admit Hearsay Evidence in Criminal Proceedings
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