Hearsay part 1
Of all the words used in the law of evidence hearsay is probably the one which most members of the public would recognize. Presumably that is why it was used as the title of a pop group (because it was a known term, obviously not as a tribute to the law of evidence). It is also a term which has proved extraordinarily difficult to define, has been subject to numerous exceptions, and is now heavily regulated by statute.
Given what I have just stated, it is obviously difficult to produce an article which is both readily understandable and entirely accurate. The scale of the problem regarding hearsay was referred to by Lord Reid in the case of Myers v DPP. Lord Reid is an extremely distinguished judge and so any comment he makes is one to be taken seriously. He said that it was " difficult to make any general statement about the law of hearsay which is entirely accurate". When a judge as distinguished as that says what he did, it really illustrates the scale of the problem.
In the case of Regina v Kearley the House of Lords adopted a definition which had been used in the textbook "Cross on Evidence" in saying that hearsay consisted of an "assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted". (Since hearsay extends to opinion evidence this definition which refers solely to fact may be a little too limited). Hearsay was defined in the Civil Evidence Act 1995 (section 2(1)(a) as "a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.". This definition is effectively repeated in respect of criminal matters by the Criminal Justice Act 2003 section 114.
The concern about hearsay evidence has always been that hearsay involves receiving evidence of facts not given by the person actually giving evidence. Therefore it is difficult to test. Lord Normand in Teper v R 1952 AC 480 described the rule as follows. "The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the witness whose words are spoken by another person cannot be tested by cross-examination, and the light which his demeanour would throw upon his testimony is lost.". If someone tells you what they saw, or what they did, or what they heard, you can look at them, see from the way they behave (their demeanour) if they seem truthful, and decide on how to view the evidence in the light of that. If someone else comes along and says what they observed then you cannot see whether the original source of the information appears trustworthy or not.
This concern is the underlying basis of hearsay rule. Next week we shall look at its application and some of the unfortunate consequences.