Courts urged to lift ban on hearsay evidence

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The Independent Online

Legal Affairs Correspondent

Government advisers are recommending that second-hand hearsay evidence should be allowed in trials - a radical change to a basic principle of law.

The Law Commission is still considering whether to recommend an even more controversial step of allowing a defendant's previous convictions to be disclosed to a jury.

The Home Secretary, Michael Howard is already under pressure from police to change what they see as technicalities which allow increasing numbers of defendants to go free.

Although hearsay is allowed in other countries, in England it is a basic taboo. Lawyers learn in their first week at college that a witness, Mr Smith, must not tell a court that his friend Mr Jones had told him he saw the defendant stealing a watch. It is thought unfair because Mr Jones is not available to be cross-examined, so a jury cannot reasonably decide whether to believe him. The same rule applies to documents if their author is not in court to verify them.

The radical change will be recommended today in a Law Commission consultation paper, ordered by Mr Howard in April 1994. The commissioners - a panel of experienced lawyers chaired by a judge - are unimpeachably apolitical, and insist the changes would be in the interests of justice, potentially aiding both prosecution and defence. They believe hearsay evidence should be admitted as long as there is a good reason why the "second-hand" witness cannot be in court in person.

The commissioners say juries should be told clearly to give less weight to hearsay evidence than to direct evidence, but that both should be heard. They say the current law which admits hearsay only in a few exceptional circumstances, such as written confessions, has complex rules which waste days of court time, and "cannot be understood by the average person in the dock".

The commissioners are sceptical of the value of the oath and of cross- examination for establishing truth from a witness. "Psychological research shows that the most accurate account is given when 'free report' is encouraged and that direct and leading questions produce less accurate answers." Cross-examination can confuse a witness, they say. So can interrupting his story to say he must withdraw a remark because it is hearsay.

They detail a list of situations in which hearsay should automatically be allowed: when the witness is dead or too ill to attend; when a witness refuses to give evidence; when a witness is abroad and cannot be made to attend court; when a witness cannot be traced. They stress, however, that the hearsay witness must be identified. It is not enough to say: "I heard a man on a train say ..."

Stephen Silber QC, lead author of the report, said: "We are seeking to do away with the injustice and complexity of the old hearsay rule, and replace it with a sensible modern solution which is fair to all parties. We believe our proposals will lead to shorter trials and greater concentration on the vital issues."

tLaw Commission consultation paper 138; HMSO; pounds 19.95.