Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(11) (19 June 1997)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

11.1 In this Part we consider the position of a party against whom hearsay evidence is adduced, and who is thus deprived of the opportunity to test that evidence by cross-examination. We set out the safeguards we recommend, in the order in which they would arise in practice. Some of the safeguards are inherent in our regime; (1) some exist under current law; (2) and some we recommend should be introduced to compensate for the loss of the right to cross-examine. (3) Finally we mention a safeguard which we raised for discussion in the consultation paper, but which we do not think is necessary or desirable. (4)

DISCLOSURE OF THE PROSECUTION CASE

11.2 There is a duty on the prosecution to disclose evidence on which it proposes to rely, except in the case of summary offences. (5) Thus the defendant should be aware in advance of the trial of the case he or she has to meet.

SAFEGUARDS INHERENT IN OUR RECOMMENDED SCHEME

Multiple hearsay is not admissible

11.3 Under our recommendations, a statement would not normally be admissible unless made by a person with personal knowledge of the matters stated. (6) A statement by a person with no such knowledge, repeating what had previously been said by another person who did have such knowledge, would normally be inadmissible even if each statement, taken alone, would have fallen within an exception to the hearsay rule. (7) The exception to this principle most likely to arise in practice is the case of business documents, which are already admissible even if they contain multiple hearsay.

The absent declarant must be identified

11.4 We believe that, for a party to be able to discredit the maker of a hearsay statement or to controvert its contents, the maker must be identified. We therefore recommend that a person should be identified to the satisfaction of the court before his or her statement can be adduced on the ground that he or she is unavailable to testify. (8)

11.5 This recommendation would not apply to business documents or evidence admitted under the safety-valve. In each of those cases we believe that there are sufficient built-in protections for the identification of the witness to be dispensed with. (9) In the case of business documents, we believe that there is a partial inherent guarantee of reliability, as such a document cannot be admitted unless the person who supplied the information contained in it "had or may reasonably be supposed to have had personal knowledge of the matters dealt with". (10) Moreover, we recommend that the court should have a discretion to direct that a statement is not admissible under the business documents exception if there is reason to doubt its reliability. (11) In the case of evidence tendered under the safety-valve the threshold for admissibility is high, and the court would be required to take into account the interests of any opposing party before deciding whether the evidence should be admitted. (12)

FORMAL NOTICE TO BE GIVEN

11.6 As we believe that a party should be able to controvert the contents of a hearsay statement, and to challenge the credibility of its maker, (13) a party should, where possible, be notified of another partys intention to rely on hearsay evidence. Phillips LJ suggested that each party should be required before trial to give notice of a provisional intention to adduce documentary evidence and, in the absence of a challenge by any other party, the evidence would be automatically admissible. We regard this as a very helpful idea, and we would extend it to all hearsay, not just documents. (14)

11.7 We recommend that, where it is known in advance of the trial that a party will seek to adduce hearsay evidence, rules of court should require that party to give notice of the intention to do so. (15) (Recommendation 41) The normal way of giving notice would be by serving the statement of the witness who it is proposed should give evidence of the hearsay statement, or should produce a document containing it, under section 9 of the Criminal Justice Act 1967. In the absence of a challenge by any other party, the evidence would then be admissible.

APPLICATION FOR A RULING ON ADMISSIBILITY TO BE MADE PRE-TRIAL WHERE POSSIBLE

11.8 Our provisional view in the consultation paper was that if the parties do not agree that a hearsay statement should be admitted, an application should be made to the court, preferably before the trial and, where this is not possible, at the start of the trial. (16) We suggested (17) that, in the case of a trial on indictment, the appropriate place and time would be at the Plea and Directions Hearing. (18) In fraud cases, (19) and in other long and complex cases on indictment, (20) the appropriate time would be at a preparatory hearing. In the case of a summary trial, it would be at a pre-trial review, if one is held.

11.9 We have always been keen that a ruling on admissibility should be made as early as possible. In many cases the admission or exclusion of the statement might affect the plea, or the question of whether the proceedings are to continue, so that an early ruling might well lead to an earlier conclusion of the case. Another advantage is that if the statement is ruled admissible, the opposing party will then have an opportunity to investigate its accuracy and the credibility of its maker.

11.10 On consultation, this approach was approved by all save two of the respondents who addressed the point. We were warned that many circumstances in which hearsay evidence will have to be adduced (such as where a witness falls ill or is threatened) will only become apparent at the trial, and we accept that it will not always be possible for an application to be made before the trial. One experienced criminal practitioner, Peter Rook QC, was concerned that the need for pre-trial applications might cause difficulties for the defence, because it could be forced to make premature disclosure of its case. We can see the force of this point, but believe that it has been substantially reduced by recent developments which put pressure on the defence to disclose its case. There are sanctions if an accused fails to mention facts of importance relating to his or her defence when questioned or charged. (21) In addition, under Part I of the 1996 Act, in the case of a trial on indictment the defence is required to supply a written statement which sets out in general terms the nature of the accuseds defence, and indicates the matters on which the accused takes issue with the prosecution and why he or she does so. (22) If a defendant makes late disclosure, he or she risks adverse comment from the trial judge (or, with leave, any other party), and the jury may draw whatever inference is appropriate. (23)

11.11 Under section 40 of the 1996 Act, a judge may make a ruling on the admissibility of evidence, including hearsay, at a pre-trial hearing, which is binding from the time it is made until the case is disposed of. (24) A judge may subsequently discharge or vary any ruling if it appears to him or her to be in the interests of justice to do so, and this power may be exercised on the application of any party to the case or by the court of its own motion. (25) We see no reason to exempt hearsay evidence from this general provision. We also consider that where magistrates make pre-trial rulings on evidence, their rulings should also be binding. (26) We recommend that a party seeking to rely on a hearsay statement should make an application for its admission before the trial where possible, and, where this is not possible, at the earliest practicable opportunity, and a ruling on admissibility should be binding, save where there is a change of circumstances. (Recommendation 42)

THE BURDEN OF PROOF

11.12 Where a party seeks to adduce hearsay evidence, the burden is on that party to prove the foundation requirements for the admission of that evidence. For example, if the prosecution wishes to adduce a business document, it must prove that the document tendered falls within the provisions of section 24 of the 1988 Act. (27) We would not seek to alter the burden of proof. (28)

THE STANDARD OF PROOF

11.13 The standard of proof for the foundation requirements of hearsay evidence is the same as for any other form of evidence adduced by the party seeking to put in the hearsay. Thus, where the prosecution wishes to adduce hearsay, it must satisfy the court of the necessary conditions beyond reasonable doubt, (29) whereas the defence need only satisfy the court of those conditions on the balance of probabilities. (30) Our provisional view was that this approach was consistent with general principles and should continue to apply under our proposed reforms. (31)

11.14 On consultation all those who responded on the point were in favour of this approach, with one exception, who could not see the logic in the Crown having to meet a higher standard of proof. As this concerned an important point of principle, the Commissioner with special responsibility for criminal law raised the matter at Judicial Studies Board seminars which he attended to discuss this project. (32) The consensus of those attending the seminars was that the present rules are correct, and that the standard of proof required for the admission of hearsay adduced by any party should be the same as that required for the admission of any other evidence adduced by that party. We conclude that, as now, the burden of proving facts which render hearsay admissible should be on the party seeking to adduce it, the standard of proof being the same as for any other evidence adduced by that party.

JUDICIAL DISCRETIONS

11.15 The defendant would continue to be protected by the two discretions available to the court to exclude evidence on which the prosecution seeks to rely: the discretion at common law to exclude evidence whose prejudicial effect outweighs its probative value, as part of the courts duty to ensure that the accused has a fair trial, (33) and the discretion contained in PACE, section 78(1). (34)

AN ADDITIONAL POWER TO EXCLUDE EVIDENCE

11.16 In the consultation paper, (35) we referred to section 135 of the Evidence Act 1995 of the Commonwealth of Australia, and Rule 403 of the United States Federal Rules of Evidence, both of which allow the court to exclude admissible evidence. (36) We invited comment on the possible introduction of such a power in our jurisdiction. There was a small and mixed response to this question, with about two-thirds being against the conferment of such a power.

11.17 On further consideration, we came to the view that a power in similar terms to the Australian or American powers would not be appropriate within our recommended scheme, but that there would be a need for a power to exclude superfluous hearsay evidence. Evidence which is wholly irrelevant is not admissible at all, but evidence which has some relevance is prima facie admissible. Under our recommendations, more hearsay evidence would be admissible than is presently the case, but we propose the abolition of two of the powers that courts currently have to control the quality and quantity of some hearsay evidence which is adduced, namely sections 25 and 26 of the 1988 Act. Evidence which the prosecution seeks to adduce may still, under our proposals, be excluded by the court in the exercise of its discretion at common law or under section 78(1) of PACE, but this does not cover superfluous evidence which would not make the trial unfair, and there is no control on the quantity of defence hearsay evidence.

11.18 The new power to exclude superfluous hearsay would be available in relation to all hearsay evidence which would otherwise be admissible under our recommended scheme. We envisage that exercise of this power will be appropriate only in exceptional cases, where the probative value of the evidence is so slight that almost nothing is gained by admitting it. This power will help the opposing party and also ensure that the courts time is not wasted, thereby meeting the point which concerned some respondents, that the admission of hearsay would lead to a lot of barely relevant evidence being adduced. We recommend that the court should have power to refuse to admit a hearsay statement if it is satisfied that the statements probative value is substantially outweighed by the danger that to admit it would result in undue waste of time. (37) (Recommendation 43)

THE RIGHT TO CHALLENGE THE CREDIBILITY OF THE ABSENT DECLARANT

11.19 Under the 1988 Act, a person against whom hearsay evidence has been admitted may adduce contradictory evidence in circumstances akin to those in which contradictory evidence would have been permitted, had the witness given oral evidence. (38) In the consultation paper we considered these to be important rights, providing some compensation for the fact that the maker of the hearsay statement cannot be cross-examined, and so we proposed that the position under the 1988 Act should apply in respect of hearsay evidence adduced under our proposals. (39)

11.20 We drew the attention of our readers to one matter which caused us some concern. Where matters to the discredit of a witness are put to the witness in cross-examination, but the witness denies them, the cross-examining party may or may not be able to adduce evidence in rebuttal, depending on the nature of the attack. (40) If a particular attack could have been supported by evidence in rebuttal, had it been made against a witness who denied it, we think it should clearly be possible to make it against the absent maker of a hearsay statement.

11.21 The more difficult question is whether it should be possible to attack the credibility of an absent declarant on a matter on which, had the declarant given oral evidence, his or her denial would have been final. The approach of section 5(2) of the Civil Evidence Act 1995 is to exclude evidence of any such matter. The alternative is to permit such evidence, on the ground that to do otherwise would place the attacking party at an unfair disadvantage where, had the declarant appeared in person, he or she would have admitted the matter or denied it in an unconvincing way. (41) The position under the 1988 Act is that such evidence is allowed, subject to the leave of the court. (42) The purpose of the requirement of leave was to avoid the admission of evidence which might, for example, be unfair to the declarant, who could not personally defend his or her credibility, or which might be presented at such length that the trial would be unduly protracted. Our provisional view was that the reasoning behind the provisions of the 1988 Act was to be preferred, and we had no reason to believe that these provisions have caused any problems in practice. (43)

11.22 On consultation, many respondents agreed with our provisional view, but some expressed the concern that it might lead to a multiplicity of witnesses and side issues. We note that these problems have not arisen under the 1988 Act and we therefore consider it unnecessary to make specific provision for them.We recommend that, where a hearsay statement is admitted and the maker of the statement does not give evidence, the following evidence should be admissible to discredit the maker of the statement:

#1(1) evidence which, had the maker given evidence, would have been admissible as relevant to his or her credibility; and

#1(2) (with the leave of the court) evidence of any matter which, had the maker given evidence, could have been put to him or her in cross-examination as relevant to his or her credibility but of which evidence could not have been adduced by the cross-examining party. (44) (Recommendation 44)

Inconsistent statements

11.23 It follows from the previous recommendation that any other statement made by the maker of the hearsay statement which is inconsistent with the hearsay statement would be admissible to discredit the maker, like a previous inconsistent statement by a witness. In the latter case we have recommended that the previous statement should be admissible not only to discredit the witnesss oral evidence but, by way of exception to the hearsay rule, as evidence of its truth. (45) We see no reason to draw a distinction in this respect between an inconsistent statement made by a witness and one made by the maker of a hearsay statement. We recommend that, where a hearsay statement is admitted and the maker of the statement does not give evidence, evidence that the maker of the statement made another statement, inconsistent with the hearsay statement,

#1(1) should be admissible for the purpose of showing that the maker contradicted himself or herself, (46) and

#1(2) when so admitted, should also be admissible as evidence of any matter stated in it of which oral evidence by the maker would be admissible. (47)(Recommendation 45)

The right to call additional evidence where the credibility of the declarant has been attacked

11.24 Where the credibility of the maker of a hearsay statement is attacked, the party adducing the statement may wish to rehabilitate the declarants credibility, or adduce additional evidence to bolster his or her case. In Scotland, in such circumstances, the judge or magistrate may permit either party to lead additional evidence of such description as the judge may specify. (48) Our provisional view was that such a procedure would also be useful and appropriate under our proposed regime, and should apply to all hearsay statements. (49)

11.25 On consultation, the vast majority of those who commented on this matter agreed with our provisional view, but there was concern that it might lead to protracted evidence on collateral issues. We can see the force of that point, but believe that it would be sufficient to leave the matter to the judgment of the court. We recommend that where an allegation has been made against the maker of a hearsay statement, the court should have power to permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation. (50) (Recommendation 46)

THE COURTS DUTY TO STOP THE TRIAL

11.26 Before the Court of Appeals decision in Galbraith, (51) a judge was allowed to stop a case and direct an acquittal if he or she took the view that the prosecution evidence was such that a conviction would be unsafe and unsatisfactory. (52) This allowed the judge to halt the trial where, for example, a confession was unconvincing and constituted the main or only evidence.

11.27 The position was altered in Galbraith, where it was held that this rule allowed the judge to usurp the role of the jury. It was held that a judge should stop a case only where (i) there is no evidence that the defendant committed the offence or (ii) the judge decides that, taking the prosecution evidence at its highest, a reasonable jury properly directed could not properly convict on it. The court went on:

Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesss reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. (53)

11.28 Galbraith maintains the traditional allocation of roles: matters of law are for the judge, and issues of fact are for the jury. This distinction has been staunchly maintained by the courts because in general it serves the interests of justice. Nevertheless, exceptions exist. For example, the court may be asked (54) to rule whether a confession adduced by the prosecution has been, or may have been, obtained by oppression, or in consequence of anything said or done which was likely to render it unreliable. In the Crown Court this issue of fact is reserved for the judge, because of a perceived risk that the jury may act upon evidence which is not to be relied upon.

11.29 Another instance of evidence which can be unreliable is identification evidence: where identification is in issue, and the judge concludes that the quality of the identification evidence is poor and unsupported by other evidence, the judge should withdraw the case from the jury and direct an acquittal. (55)

11.30 The Royal Commission recommended that Galbraith be reversed, "so that a judge may stop any case if he or she takes the view that the prosecution evidence is demonstrably unsafe or unsatisfactory or too weak to be allowed to go to the jury". (56) No final view has yet been reached about whether this recommendation will be acted upon by the Government. (57)

11.31 The justifications for creating exceptions to the rule in Galbraith is that the risk that the jury may act upon evidence which is not to be relied upon "may well be seen as serious enough to outweigh the general principle that the functions of the judge and jury must be kept apart". (58) Experience has shown that identification evidence, and confessions, can be unreliable. The same can be said of hearsay. It seems to us that a derogation from Galbraith may be justified in the case of hearsay evidence on the same basis: even though the (absent) declarant may be honest, his or her evidence, being hearsay, may be so poor that a conviction would be unsafe. (59)

11.32 We recommend that if the case against the accused is based wholly or partly on a hearsay statement, and the evidence provided by the statement is so unconvincing that, considering its importance to the case against the accused, the accuseds conviction of the offence would be unsafe, the magistrates should be required to acquit, or (as the case may be) the judge should be required to direct the jury to acquit, the accused of the offence. (60)(Recommendation 47)

THE JUDGES DIRECTION TO THE JURY

11.33 The Court of Appeal has held that a judge may direct the jury that hearsay evidence is different from other evidence and that they must remember, when assessing such evidence, that it has not been subject to cross-examination and they have not had the opportunity of seeing the maker of the statement in the witness box. (61) The Judicial Studies Board published a new specimen direction in May 1996, which is appropriate where hearsay evidence is admitted and not agreed. The direction is tailored to the individual case, but the judge reminds the jury that they have not seen the witness in the witness box, and that the witness has not been cross-examined. (62)

11.34 In the consultation paper we considered whether the judge ought to be required to direct a jury in a particular way when hearsay evidence has been adduced. (63) The duty of a judge in summing up the evidence is not merely to remind the jury of the evidence but also to use his or her experience and judgment to help them assess it, and to do so in such a way as to ensure that the trial is fair; thus the judge has a particular duty to put the defence case to the jury. In respect of doubtful hearsay evidence, the judge would have to warn the jury of possible reasons why they should not rely on that evidence, or ways in which they should scrutinise or test it before relying on it. Subject to this basic duty, the judge has a wide discretion in deciding how to sum up. (64)

11.35 Our provisional view was that it would be undesirable to fetter the judges discretion and that there is no need to require any particular form of warning. (65) Nothing was said on consultation to make us reconsider that approach. In the light of this, we are happy to accede to the plea of the Recorder of London, Judge Sir Lawrence Verney, "There are increasing constraints on the Judges discretion as to how to sum up. Please do not add to them." We therefore make no recommendation that there should be any statutory duty on a judge to direct the jury in any particular way on hearsay evidence.

A POSSIBLE FURTHER SAFEGUARD

11.36 As we have already said, (66) we have been concerned that the admission of hearsay might lead to manufactured evidence going in. This fear led the CLRC to recommend a bar on the admission of statements which came into existence after the defendant was charged. (67) In New Zealand a bar has been imposed on statements created after legal proceedings could reasonably have been known by the declarant to be contemplated. (68) These options exclude hearsay evidence regardless of its reliability and, for that reason, we concluded provisionally that such a safeguard would not be desirable. (69)

11.37 On consultation, this view was supported by a large majority of those who responded on the point. We have come to the conclusion that our provisional view was correct, for two reasons. First, witnesses who can give exculpatory evidence, such as alibi witnesses, are likely to be contacted, and statements taken from them, only after the defendant has been charged. A bar on hearsay statements made after charge would probably exclude far more defence hearsay (regardless of its reliability) than prosecution hearsay.

11.38 Secondly, we are, of course, conscious of the danger that dishonest statements may be made after the defendant has been charged; but statements made before charge may also be false. We do not think that the fear of manufacture justifies the exclusion of the statement in the event of the subsequent unavailability of the witness. We believe that the risk of manufactured evidence can be addressed by requiring the declarant to be identified, by restricting hearsay admissible on the grounds of the declarants unavailability to first-hand hearsay, and, in Crown Court trials, by a warning to the jury about the risks of manufacture. (70)

(1) Namely, the recommendation that an absent declarant be identified (save in certain cases see para 11.5 below), and the general principle that multiple hearsay is not admissible.

(2) Disclosure of the prosecution case; the burden of proof; the standard of proof; the judicial discretions at common law and under s 78(1) of PACE; the right to challenge the credibility of the absent declarant; and the judges direction to the jury.

(3) The application for hearsay evidence to be admitted to be made pre-trial where possible and a binding ruling to be given; formal notice to be given of intention to adduce hearsay evidence; an additional power to exclude evidence; and the courts duty to stop the trial if a conviction would be unsafe.

(5) Magistrates Courts (Advance Information) Rules, SI 1985 No 601; Magistrates Courts Act 1980, ss 5AD; Criminal Justice Act 1987, s 4. See also Part I of the 1996 Act.

(9) We do not recommend that this requirement apply to statements falling within the res gestae exception either. We are recommending the preservation of the res gestae exception in its current form (see paras 8.114 8.129 above) and are not aware of any injustice caused by the admission of res gestae statements made by unidentified persons.

(12) Under cl 9 of the draft Bill, evidence could be admitted only if "the court is 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".

(14) Although the procedural details differ somewhat, the 1995 Act, s 259(5), also requires notice. This follows recommendation 12(1) of the SLC Report.

(18) At such hearings, the prosecution and the defence are expected to inform the court of (among other things) the issues in the case, any questions as to the admissibility of the evidence which appears on the face of the papers, and any application for evidence to be given by closed circuit television or to put in a pre-recorded interview with a child witness. Any rulings made at a Plea and Directions Hearing are capable of being binding under Part IV of the 1996 Act.

(19) A preparatory hearing may be ordered by a judge in a Crown Court trial when an indictment reveals a case of fraud of such seriousness and complexity that substantial benefits are likely to accrue from such a hearing: Criminal Justice Act 1987, s 7(1).

(20) In such cases it is possible for a judge to order a preparatory hearing under the 1996 Act, s 29.

(24) A case is regarded as disposed of if the defendant is acquitted or convicted, or if the prosecutor decides not to proceed with the case: 1996 Act, s 40(3).

(25) 1996 Act, s 40(4); but no application may be made by a party to the case unless there has been a material change of circumstances since the ruling was made: s 40(5).

(26) If pre-trial reviews become uniform practice, this is a matter which could be covered in the rules governing such reviews.

(27) It has recently been held that the foundation requirements need not be proved in respect of s 24: Ilyas and Knight [1996] Crim LR 810. With respect, this cannot be quite right: a court may be satisfied that the foundation requirements are proved simply by looking at the document, but it is surely not absolved from being satisfied that they are proved to the requisite standard. See Professor Sir John Smiths commentary on Ilyas and Knight.

(28) We do, however, recommend that where a party alleges that the party seeking to have hearsay admitted because the declarant is unavailable has caused the unavailability, then the burden of proving that allegation should fall on the party making it. See paras 8.31 8.32 above.

(33) Collins (1938) 26 Cr App R 177; Sang [1980] AC 402; Blithing (1983) 77 Cr App R 86; Scott v R [1989] AC 1242; Henriques v R (1991) 93 Cr App R 237. Although the common law discretion is preserved by PACE, s 82(3), it is doubtful whether it adds anything to the statutory discretion. See para 4.43, n 71 of the consultation paper.

(36)Section 135 gives the judge a discretion to exclude evidence tendered by either party "if its probative value is substantially outweighed by the dangers that the evidence might (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time". Rule 403 of the Federal Rules of Evidence provides that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, or of confusion of the issues, or of misleading the jury, or of considerations of undue delay, waste of time or needless presentation of cumulative evidence.

(40) The cross-examining party can call evidence in rebuttal to show that the witness has been convicted of a crime, is biased in favour of the party calling him or her, or has previously made a statement inconsistent with his or her present testimony: Cross and Tapper, pp 326327. In other cases the witnesss answers must be treated as final: A-G v Hitchcock (1847) 1 Exch 91, 99.

(41) These suggestions were considered in the SLC Report at para 6.16; the latter (that the evidence be admissible) was preferred by the SLC, and implemented by the Criminal Procedure (Scotland) Act 1995, s 259(4)(b).

(52) See the discussion in Galbraith [1981] 1 WLR 1039, 1061D1062E, per Lord Lane CJ.

(53) At p 1042, per Lord Lane CJ. The court approved Barker (1977) 65 Cr App R 287, where, in the course of refuting a submission that the conviction was unsafe and unsatisfactory because of inconsistencies in a crucial document, Lord Widgery CJ said, at p 288: "It is not the judges job to weigh the evidence, decide who is telling the truth and to stop the case merely because he thinks the witness is lying."

(55)Turnbull [1977] QB 224. Similarly, where a case depends on a confession by a person with a mental handicap the case should be withdrawn from the jury: MacKenzie (1993) 96 Cr App R 98.

(56) Report of the Royal Commission, ch 4, paras 42, 77, 85 and 87, and Recommendation 86. The recommendation was not confined to cases involving hearsay.

(57) At para 45 of Royal Commission on Criminal Justice: Final Government Response (1996) the Government said it was considering the recommendation, but saw some difficulties with the proposed formula and how it would differ from the ruling in Galbraith.

(58) Daley v R [1994] 1 AC 117, 129D, per Lord Mustill. In that case the Judicial Committee of the Privy Council examined the relationship between Galbraith and Turnbull [1977] QB 224. Their Lordships justified the approach adopted in the identification cases on the ground that "the case is withdrawn from the jury not because the judge considers that the witness is lying, but because the evidence even if taken to be honest has a base which is so slender that it is unreliable and therefore not sufficient to found a conviction": p 129F.

(59) It is possible, for example, to envisage a case in which the defendant is charged with assault, and the evidence against him consists of the statement from the alleged victim (who is unavailable to testify at the trial) and medical evidence. The defence is self-defence. The medical evidence is consistent with both the prosecution and the defence version of events. At the trial, the defence adduces evidence that the alleged victim was so drunk at the time of the assault that it is likely that his perception of events at the time, and his recollection of them, were inaccurate. In such circumstances, the court would be likely to conclude that the alleged victims statement is not to be relied upon, and that a conviction would be unsafe.

(60) See cl 14(1), (4) of the draft Bill. Similarly cl 14(2) requires the court to direct the jury to acquit of any offence not charged, of which they could convict by way of alternative to an offence charged, if it would be unsafe to allow them to convict of the alternative because the case for it is based wholly or partly on unconvincing hearsay. Clause 14(4)(b) has the corresponding effect in the magistrates court. Clause 14(3) makes corresponding provision for the case where the jury are required to determine whether the defendant did the act (or made the omission) charged under the Criminal Procedure (Insanity) Act 1964, s 4A, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

(61) See Scott v R [1989] AC 1242, 1259, and Cole [1990] 1 WLR 866, 869. But in Kennedy [1992] Crim LR 37 the Court of Appeal held that a jury should not be directed that less weight is to be given to hearsay statements than to evidence given from the witness box.

(64) McGreevy [1973] 1 WLR 276, 281FG, per Lord Morris of Borth-y-Gest. See also Lawrence [1982] AC 510, 51920, per Lord Hailsham of Marylebone.

(70)We assume that magistrates would be conscious of the weaknesses of hearsay evidence.

The Law Commission