‘The first respect in which the hearsay rule deviates from common sense concerns its exclusion of evidence of innocence’. (A. Zuckerman, (1989) The Principles of Criminal Evidence, Clarendon Law Series, p183).

Critically evaluate Zuckerman’s observation in the light of the current law on the use of hearsay evidence in criminal proceedings.

Analysis of the question

It is first of all essential to note the date of this comment, i.e. that it was made before the passing of the Criminal Justice Act 2003. Your essay should therefore make clear the subsequent changes to the rules on hearsay, which have arguably addressed the disadvantages the defence faced in 1989. This requires that, although the statutory provisions on admissibility apply equally to defence and prosecution, the most significant change for the defence is that of s114 (1)(d) CJA 2003, namely the inclusionary discretion, the grounds for which are set out in s114(2). Under the statute hearsay may be admitted where ‘the court is satisfied that it is in the interests of justice for it to be admissible’. Note that Zuckerman and fellow author Roberts accepted that their initial 2004 predictions of the limited scope of this provision had been ‘falsified’ ( P.Roberts and A Zuckerman Criminal Evidence OUP 2^nd edn, p437). They now endorsed Tapper’s view that the operation of s114(1)(d) led to jurisprudence which demonstrated ‘ad hoc improvisation and disregard for precedent which is antithetical to the rule of law’(ibid).

The question is quite narrowly focussed, in that it is specifically concerned with whether defence evidence is excluded under the hearsay provisions, rather than with whether prosecution evidence is admitted. Zuckerman and other commentators have drawn attention to the continuing shortcomings of the rule against hearsay. Your essay must however confine itself to this specific criticism, namely the extent to which it currently excludes evidence for the defence.

Introduction

In your introduction you should explain the position in 1989, particularly in relation to the cases under the common law where defence evidence was excluded, as the underlying focus of the exclusionary rule was the form of the evidence rather than its quality. Thus, in R v Sparks (1964), and perhaps more understandably in R v Blastland (1985), defence evidence was excluded. Point out however that the law also excluded, arguably in violation of common sense, prosecution evidence such as that in R v Kearley (1992) since the definition of hearsay embraced implied assertions. You should explain that your answer will concentrate on the statutory inclusionary discretion and the particular problem of third-party confessions and confessions by co-defendants. You should also review the use of the exclusionary discretion in relation to defence evidence. Your answer should first review how far the current law is different from that in 1989. A possible plan is:

The reform of the hearsay rule

The Law Commission in its 1997 Report No 245 Evidence in Criminal Proceedings, Hearsay and Related Topics recommended the rule against hearsay should be retained but the number of exceptions increased. It demonstrated concern for the defence in recommending an inclusionary discretion to ‘allow for the admission of reliable hearsay which could not otherwise be admitted particularly to prevent a conviction which that evidence would render unsafe’ (para 8.133). The Report cited instances where evidence that might be helpful to the defence had been excluded as the sort of situations envisaged, one such case being Sparks. However, the Report made it clear that any such discretion would be available to defence and prosecution as a ‘safety valve to be used in very limited circumstances’ (para 8.143). The Criminal Justice Act 2003 introduced a number of new exceptions to the rule against hearsay, all of which apply equally to defence and prosecution. Arguably in practice, however, some sections, such as the extension of grounds whereby witnesses could claim that they could not give evidence through fear, helped the prosecution more than the defence. In R v Shabir ( 2013) the Court of Appeal set out a detailed test for applying s 116(4).

The essay could be structured around five areas which are pertinent in considering whether Zuckerman’s 1989 observation still applies. Firstly, whether the inclusionary discretion has been applied even-handedly to defence and prosecution. Secondly, does the law now admit third party confessions which are arguably likely to be of assistance to the defence? Thirdly, how far is the exclusionary discretion applied to defence evidence? Fourthly, has the revised definition of hearsay adversely affected the defence? Finally, does the current law in this area meet the standards of Article 6? Each of these will be outlined in turn.

The use of the inclusionary discretion

Under s114(1) of the 2003 Act hearsay evidence may be admissible under any provisions in the statute, under common law provisions, if all the parties agree or if the court is satisfied that it is in the interests of justice for it to be admissible. Section 114(2) sets out the considerations the court should bear in mind before exercising the inclusionary discretion, namely that it is in the interest of justice to admit an otherwise inadmissible statement. These are probative value; the extent of other evidence; how important the statement is in the context of the case as a whole; the circumstances in which it was made; the reliability of the maker of the statement; if oral evidence on this could be given the difficulty of challenging the statement and the extent to which such difficulty would prejudice the party.

Munday commented (2022, p. 399) ‘Interestingly what is emerging in the reported case law is that s114(1)(d) appears to afford assistance to the prosecution more frequently than it does the defence.’ Examples of admissible prosecution evidence under the inclusionary discretion include R v Xhabri (2006) and R v L (2009). In R v CT (2011), however, the Court of Appeal considered that prosecution evidence of a complainant in a trial for assault was improperly admitted since she should have been called as a witness. The Court of Appeal was also critical of the pro-prosecution decision by the trial judge in R v Warnick (2013), since he had used s114(1(d) to circumvent s116. He had not satisfied s114(2)(g), which required the court to have regard to whether oral evidence should have been given. Again, in R v Y (2008) the Court considered that more caution should be exercised in considering statements that incriminated rather than exonerated the defendant. Despite this apparent reluctance, a number of academic commentators have expressed concern at the way the decision in Y upheld the admissibility of confessions through s114(1)(d) circumventing PACE. In other words, a statement is not inadmissible because it may amount to an admission of guilt by the person who made it. If the statement is admitted under the CJA, it does not have the protection afforded by PACE and its Codes. This lends support to Zuckerman’s observation in that the defence is at a disadvantage. To quote Munday (2022 p 464) ‘It does not necessarily follow that interests of justice will point in the same direction upon an application by the Crown as they might upon an application made by a defendant’.

Third party confessions

A further question Zuckerman’s observation raises is whether Blastland would be decided differently today. It does seem there is still reluctance to admit third party confessions by hearsay for the obvious reason that they may be of scant relevance. This is suggested by the outcome of R v Finch (2007) where the defence appeared to be disadvantaged by the decision on s114. The Court of Appeal endorsed the trial judge’s decision in not admitting evidence the defence wanted to adduce. This was a statement by a former co-defendant exonerating F. However, by contrast in R v McLean (2007) the Court of Appeal held that the trial judge ought to have given proper consideration to the admissibility of a co-defendant’s pre-trial statement which exculpated the appellant.

Discretion to exclude

There are two specific sections of the CJA hearsay provisions dealing with the discretion to exclude evidence. Section 126(1) has as its criterion ‘taking account of the danger that to admit the evidence would result in undue waste of time’. Unlike s78 PACE it applies to defence and prosecution evidence. Emson (2010 p 412), however, notes ‘Whatever the precise scope of s126(1), as a matter of practical reality few trial judges are likely to feel confident about excluding defence evidence, even if the provision empowers them to do so, for the simple reason that the evidence might well be true’. This does, however, raise the question of the appropriateness of the power the statute grants to exclude relevant defence evidence. Section 125(1) gives the court power to stop the case under the following conditions: the case is wholly or partly based on hearsay; such evidence is so unconvincing that a conviction would be unsafe; and the case is a trial on indictment before a jury. In R v Joyce (2005) the Court of Appeal refused a defence application to exclude identification evidence. It was not believable that all three witnesses were mistaken.

Definition of hearsay

The definition of hearsay in s115(2) and (3) means that implied assertions are not hearsay. Thus, the interpretation in R v Kearley (1992) which helped the defence, no longer applies. The definition of course applies to both defence and prosecution but since the prosecution is generally more robust in evidence gathering, particularly in electronic form, arguably the revised definition helps to undermine the defence. See R v Twist (2011)

Finally, the question requires a consideration of the extent to which there is a need for supportive evidence before a conviction can be founded on hearsay evidence. Here the role of the ECtHR should be discussed. In Horncastle (2009) the Supreme Court refused to follow the Court’s judgment in Al-Kwaja and Tahery v UK. However, the Grand Chamber subsequently rejected the ‘sole or decisive’ test as an inflexible rule. See R v Riat (2013).

Overall effect of CJA hearsay provisions on the defence

The above account has suggested that there is some, if not overwhelming, support for the continuing pertinence of Zuckerman’s observation on the application of the hearsay provisions to the defence after the advent of the CJA 2003. However, the position has also to be seen in the context of other related areas of prosecutorial advantage over the defence:

1) The biggest area of hearsay exceptions, confessions, applies to the defence.

2) In the wake of the Grand Chamber decision in Al -Khawaja and Tahery v UK (2011) a conviction may be the outcome of a trial where hearsay evidence is the ‘sole or decisive’ evidence.

3) The cumulative effect of current changes, including those concerning Special Measures, also makes for an overwhelming prosecutorial advantage. Note that the Special Measures directions are much less protective of vulnerable defendants than of non-defendant witnesses.

4) The long-term effects of denying the right to confrontation on a case-by-case basis could be to erode fair trial rights, for example by changing police behaviour. O’Brian contends (2011 p112) that evidence put forward in police statements is too unreliable and subject to manipulation to be allowed to be used at trial without an opportunity to question it.

Conclusion

Zuckerman’s recommendation in 1989 was that different tests for admissibility should apply to defence and prosecution. In relation to the defence, he wrote (p221) ‘the general principle should be that it will be admissible whenever exclusion would undermine the interests of justice’. It is arguable that this would have been a better protection against wrongful convictions than the current complex tests, albeit their overall fairness has been upheld by the Strasbourg jurisprudence.