Consultation Paper No. 117 of
The Law Commission for England and Wales
The Hearsay Rule in Civil Proceedings
Part V - Provisional Conclusions
5.1 There can be little doubt that the rule excluding hearsay is the most confusing of the rules of evidence, posing difficulties for courts, practitioners and witnesses alike. Because litigants need to know in advance what evidence they should assemble, it is of particular importance that the rules should be as easy to understand and to apply as is possible whilst continuing to serve the aims of evidence law. Any reform of the hearsay rule which succeeded in improving the clarity of understanding of its purpose and the manner in which it is to be applied would do much to improve evidence law as a whole.
5.2 Of all the arguments for and against the hearsay rule, and the discussion of the aims which it serves, the most weighty is the support it gives to the right to cross-examine. Cross-examination is seen as the best safeguard yet devised to assist courts in assessing the true probative value of evidence. But the form of the exclusionary rule and the exceptions and procedures which have been devised have proved to be ineffective in many different ways. It is inherent in the nature of an exclusionary rule that it may in important circumstances operate to exclude the best, the most relevant and the most necessary evidence. The exceptions which have developed have demonstrated the limitations of a non-discretionary rule and the procedures for notification have only served to demonstrate the continuing difficulty which courts and practitioners have in correctly identifying in advance the hearsay nature of evidence.
5.3 On the other hand, it is important to maintain awareness of the dangers of courts misunderstanding the probative value of hearsay evidence and some form of safeguard may be necessary to perpetuate widespread recognition of such dangers. The safeguards need to alert those involved in court proceedings to the dangers exacerbated by the loss of the opportunity to cross-examine and the danger that parties may come to exploit tactical advantages by resorting to hearsay rather than direct evidence.
5.4 Our provisional view is that the weakness of the exclusionary rule against hearsay cannot be remedied just by way of a clearer explanation of the present law: the present law is irremediably difficult to understand and explain to the wide audience that is expected to comply with it. Secondly, we consider that there is a role for judicial discretion in the application of rules of evidence and that reform of the hearsay rule must retain this flexibility, despite the cost in terms of certainty which it does entail. Thirdly, we also consider that it is not justifiable to exclude relevant evidence solely because it is of a hearsay nature and that the interests of justice may be better served by providing the court with all the relevant information necessary to make an informed decision.
5.5 These factors have influenced our approach to the possible ways in which the rule could be reformed. In Part IV we have analysed two main options and two associated issues which we consider are most relevant in any reform of the rule. We have considered the way that other common law jurisdictions have approached reform of the hearsay rule and the differing dividing lines that have been drawn between categories of admissible and non-admissible hearsay. Whilst we have chosen to concentrate on two possible options for reform, we include in an Appendix to this paper an outline of the present law and law reform proposals in those other countries.
5.6 Our provisional recommendation is that the best option for reform is abolition of the exclusionary rule, but that there should be some elementary and simple safeguards against abuse of the power to adduce hearsay. Consultees are invited to comment on the two options and the issues as to safeguards and the courts and proceedings to which reform should apply.
SUMMARY OF CONSULTATION ISSUES
5.7 We invite the assistance of consultees in addressing the following matters:-
The Models for Reform
(1) Should reform of the hearsay rule be by way of reform of the 1968 Act (Option 1) or by abolition of the exclusionary rule (Option 2)?
(2) If reform of the 1968 Act is to be preferred, which of the particular problems with the Act which have surfaced ought to be addressed, in addition to the main complaint as to notification procedures.
(3) Are any safeguards needed at all for documentary, or oral, hearsay statements? If they are, given the sometimes competing desires for simplicity and fairness, which of the suggested safeguards would be most effective?
(4) What further development of costs sanctions might be provided as safeguards against abuse of the power to use or challenge hearsay evidence?
(5) If the hearsay rule is to be reformed what should happen to the rule against the previous self serving statements of witnesses?
(6) To what extent should the court be able to exercise control over the use of hearsay evidence? In particular,
(a) Should there be judicial discretion to exclude superfluous or time wasting statements?
(b) Should the leave of the court be retained where it is sought to adduce previous consistent statements or any previous statements made in contemplation of litigation?
Application to all Courts and Proceedings
(7) Are there any special considerations relevant solely to magistrates' courts' civil jurisdiction (apart from their family and licensing proceedings) which suggest the need for a different rule as to hearsay or different safeguards from those which would apply to other courts?
(8) If reform of hearsay were to be by reform of the 1968 Act rather than abolition, should the provisions of the 1990 Order be preserved and extended to other categories of family proceedings?
(9) Is there any further need to retain the distinction between the wardship court's approach to hearsay and that which is to be applied by the other courts under the 1990 Order?
(10) Should arbitration proceedings continue to be bound by the strict rules of evidence as to hearsay (unless waived by agreement) in the same way as other civil proceedings unless the parties agree otherwise?
(11) Are there any respects in which the identity of courts or proceedings which are or are not governed by the civil rules of evidence needs to be clarified?
Questions on the procedural safeguards contained in the 1968 Act
It would be particularly useful to have information from legal practitioners on the following points concerning the procedural safeguards put in place by the 1968 Act and the rules of court, in order to construct an informed view on the effectiveness of the present scheme of rules.
(12) At what stage in the preparation for trial do you consider the need to serve hearsay notices?
(13) Do you seek agreement with the other side as to admissibility of hearsay statements in the way set out in the rules, or do you use a different, less formal approach?
(14) To what extent does the likelihood of the other party being unrepresented or not legally represented affect the manner in which notification of hearsay, or challenge to the use of hearsay, is handled?
(15) Are the difficulties in complying with the notification requirements due to difficulties in foreseeing the use of oral or written hearsay at the trial, or in correctly categorising evidence by reference to its hearsay features?
(16) How often does it happen that in the course of giving oral evidence at trial a witness gives unexpected hearsay evidence?
(17) From your experience, to what extent are the present rules under C.C.R. Order 20 and R.S.C. Order 38 observed?
(18) What is your view as to the relevance and practicality of those rules and their importance to regulating the use of hearsay evidence?
(19) Does compliance with the provisions of the Act in practice generate difficulties or cost or delay?
(20) Is there a need to eliminate inconsistencies and areas of overlap between the notice provisions under the 1968 Act and other rules relating to pre-trial exchange of evidence and affidavit evidence?
(21) We invite views on any other points which we may have overlooked or which consultees may consider need to be further developed.
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