Hearsay Evidence in Criminal Proceedings

1. Auflage 2008
ISBN: 978-1-84113-812-1
Verlag: Bloomsbury Publishing PLC

Buch, Englisch, 376 Seiten, Format (B × H): 159 mm x 232 mm, Gewicht: 592 g

Reihe: Criminal Law Library

The Criminal Justice Act 2003 re-wrote the hearsay evidence rule for the purpose of criminal proceedings, enacting the recommendations of the Law Commission together with some proposals from the Auld Review. Since the new provisions came into force a body of case-law has interpreted them and, in particular, given guidance as to how the new "inclusionary discretion"

should be exercised. Following the style of his earlier book about the new law on bad character evidence, the central part of Professor Spencer's book on hearsay evidence consists of section-by-section commentary on the relevant provisions of the Act. The commentary is preceded by chapters on the history of the hearsay rule, and the requirements of Article 6(3)(d) of the European Convention on Human Rights. It is followed by an appendix containing the text of the statutory provisions and a selection of the leading cases.

Autoren/Hrsg.

Spencer, JR

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)

Inhaltsverzeichnis

Introduction
Hearsay rule and the rise and fall of the exclusionary rules of evidence
Scope and evolution of the hearsay rule
Hearsay rule in criminal law as it stood before the 2003 reform: justifications for the rule
Criticisms of the hearsay rule
Hearsay rule as seen by legal writers

The 'directness principle' or 'best evidence' approach

Abolition of the hearsay rule in civil proceedings

Background to the 2003 reform: Criminal Law Revision Commitee, Fraud Trials Committee, Law Commission and Auld Review

Reform: Criminal Justice Act 2003, Part 11, Chapter 2

Conclusion: provisional assessment of the reform

Date of entry into force

2 Hearsay and the European Convention of Human Rights

The confrontation principle

ECHR, Article 6(3)(d)

Who is a 'witness' for the purposes of ECHR, Article 6(3)(d)?

What is meant by 'a right to examine or have examined witnesses against him'?

Does a conviction based on evidence from witnesses whom the defendant was unable to examine invariably infringe his rights under ECHR, Article 6(3)(d)?

The English case law on ECHR, Article 6(3)(d)

3 The Scope of the Reform, the Shape of the New Exclusionary Rule and the New Scheme of Exceptions

Abolition of the common law exclusionary rule: the demise of Kearley

The new exclusionary rule: CJA 2003, sections 114(1) and 115

The new definition of hearsay: conclusion

Scheme of exceptions

4 Hearsay Admitted by Agreement

5 The 'Inclusionary Discretion' and the General Discretion to Exclude

Discretionary inclusion under CJA 2003, section 114(1)(d): 'safety-valve' or alternative tap?

What are 'the interests of justice'?

Particular applications of CJA 2003, section 114(1)(d)

Discretionary exclusion: CJA 2003, section 126

6 Statements of Witnesses who are Unavailable (CJA 2003, Section 116)

History: earlier provisions

The new provision: CJA 2003, section 116

7 Documentary Hearsay (CJA 2003, Section 117)

History

Underlying issue: 'records' of different types

CJA 2003, section 117

Extra conditions for the admissibility of police records

Discretion to exclude

Documentary evidence and real evidence

CJA 2003, section 117: conclusion

8 Other Statutory Exceptions

9 Preserved Common Law Exceptions (CJA 2003, Section 118)

Public information, etc

Reputation as to character

Reputation or family tradition

Res gestae

Confessions, etc

Admissions by agents, etc

Common enterprise

Expert evidence

10 Confessions (and Other Extra-Judicial Statements by Defendants)

Introduction

Defendant's extra-judicial confession as evidence for the prosecution

Defendant's extra-judicial 'non-confession' as evidence for the defence: 'mixed statements', etc

Extra-judicial statement of one co-defendant as evidence against another

Extra-judicial statements of one co-defendant as evidence for another

Defendant's extra-judicial statements: conclusion

11 Multiple Hearsay

12 The Rule Against Narrative

Introduction

Rule against narrative is retained

Rules about 'refreshment of memory' are relaxed

Other common law exceptions to the rule are reformed and put into statutory form

Where the previous statement of a witness is admissible, it is now 'evidence of any matter stated in it'

A practical point: a previous statement, if in documentary form, must not normally be given to the jury when they retire

13 Videotaped Evidence-in-Chief

Introduction

Background

14 Other Matters: Experts (CJA 2003, Section 127) and Proof of Documents (Section 133)

Expert evidence: preparatory work

Documents: evidential status of a copy

15 Practical Issues

Taking, recording and preservation of statements and the rules on access to them

Evidence on commission

Requirement to give notice of hearsay evidence: Criminal Procedure Rules

Deciding applications to admit hearsay evidence and applications for hearsay to be excluded

Time and place for deciding on the application

Giving reasons for the

Über Autor(innen)

JR Spencer QC is Professor of Law in the University of Cambridge and a Fellow of Selwyn College. He is also the author of Evidence of Bad Character (Hart Publishing, 2006).