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Vol 21 No 9 Sept/Oct 2016

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Hearsay Evidence in Criminal Proceedings 2nd ed

ISBN13: 9781849464635
Previous Edition ISBN: 9781841138121
Published: February 2014
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £35.00

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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.

In 2008, Professor Spencer wrote a book explaining the new law, intended for practitioners as well as academics. Following the style of his earlier book about the new law on bad character evidence, the core of the hearsay book was a section-by-section commentary on the relevant provisions of the Act, discussing the case-law that had interpreted them.

Since the appearance of the first edition, the new law on hearsay evidence has been the subject of a spectacular exchange between the UK Supreme Court and the European Court of Human Rights, the effects of which the Court of Appeal has interpreted in a several leading cases. In this new edition, the commentary is revised to take account of these developments.

As in the first edition, 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.

1. 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
Committee, Fraud Trials Committee, Law Commission and Auld Review
Reform: Criminal Justice Act 2003, Part 11, Chapter 2
Conclusion: provisional assessment of the reform Scope Date of entry into force

2. Hearsay and the European Convention on 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'?
To what extent, if any, is it ever possible to base a conviction on the evidence of a witness or witnesses whom the defendant was unable to 'examine or have examined', without infringing his rights under ECHR, Article 6(3)(d)?
The defendant's right to confrontation-the case for a new system of taking evidence ahead of trial

3. The scope of the reform, the shape of the new exclusionary rule and the new scheme of exceptions
General scope of the new law
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): 'safetyvalve' or alternative tap?
What are 'the interests of justice'?
Particular applications of section 114(1)(d)
Discretionary exclusion: PACE, section 78 and 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)
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)
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
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 it retires
The rule against narrative: conclusion

13. Videotaped evidence-in-chief
Annex: Youth Justice and Criminal Evidence Act 1999, section 27

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 decision
Credibility of non-witnesses whose statements are admitted
Enhanced status of a witness's previous statements
Stopping the case where the evidence is unconvincing
Directing juries

Series: Hart Criminal Law Library

Evidence of Bad Character 3rd ed ISBN 9781509900046
Published July 2016
Hart Publishing
Evidence of Bad Character 3rd ed (eBook) ISBN 9781509900053
Published July 2016
Hart Publishing
£33.32 + £6.67 VAT
Hearsay Evidence in Criminal Proceedings 2nd ed (eBook) ISBN 9781782252948
Published February 2014
Hart Publishing
£29.16 + £5.83 VAT
Case Management in Criminal Trials 2nd ed ISBN 9781849463041
Published January 2012
Hart Publishing
Case Management in Criminal Trials 2nd ed (eBook) ISBN 9781847318824
Published January 2012
Hart Publishing
£33.32 + £6.67 VAT
Homicide Law in Comparative Perspective
Edited by: Jeremy Horder
ISBN 9781841136967
Published December 2007
Hart Publishing
Fair Trials: The European Criminal Procedural Tradition and the ECHR ISBN 9781841137308
Published August 2007
Hart Publishing
Self-Defence in Criminal Law ISBN 9781841136073
Published July 2006
Hart Publishing