Hearsay part 2
The original idea of the hearsay rule was doubtless to avoid injustice. Allowing in second-hand evidence made it difficult testing cross-examination and could lead to injustice. That seems to be an entirely understandable approach.
Unfortunately as with any absolute legal rule there were also circumstances where, so far from avoiding injustice, the hearsay rule was actually a cause of it. Certain examples will suffice to show the problem that this could cause. In considering those examples it is important to remember that at common law before statutory intervention the hearsay rule could actually operate so as to prevent the defence from calling material which most people would have regarded as highly relevant.
An illustration is a House of Lords case called Blastland. The defendant had been convicted of offences of murder and buggery. These were in respect of a 12-year-old boy. The defence case was that although he admitted gross indecency with the boy, a third party had appeared and frightened the defendant off. During the course of the prosecution investigation it obtained material which it passed the defence. This was obtained whilst investigating a third party. The third party had stated as follows:
- (a) in police interview the third party had confessed to having committed the crimes, then retracted the confession, made it again, and finally retracted it
- (b) the third party told his girlfriend on the night of the murder, (when the victim's disappearance had not been noticed by his family or reported to the police), that a young boy had been murdered in Gainsborough.
- (c) The morning following the murder,, at a time when the body of the victim had not yet been found, the third party told other persons that a young boy had been murdered, that the body was on a local playing field, that the victim had had an argument with his parents before leaving his home on the night he was murdered and that the boy lived at a particular address. This information was in the main true.
No charges were brought against the third party (there was no forensic evidence against him). There was forensic evidence linking the defendant.
The defence wanted to call a witness to give testimony about what the third party had said. The inference they would have sought to draw from that was that that person knew things you would expect possibly only the murder would now. However the evidence was treated as hearsay. The House of Lords held (looking at an exception to the hearsay rule) that statements made to a witness by a third party were not excluded by the hearsay rule when they were put in evidence solely to prove the state of mind of the maker of the statement or of the person to whom it was made applied if and only if where that state of mind is relevant to the trial or an issue therein. The knowledge of the witness that the boy had been murdered had not been in issue at the trial nor as such had it been of any relevance to the issue at the trial, which had been whether it was proved that the appellant had buggered and murdered the boy. Moreover the court held that how the witness had come by that knowledge, albeit relevant, had been a matter of pure speculation and the evidence was of no help in establishing that. In other words, although it is supplying the hearsay rule might have operated to help the defendant, it was applied.
It may well have been that there was plenty of evidence against the appellant. However the conclusion that it was pure speculation as to how a third party may have discovered this information seems somewhat harsh when it is pretty clear that the only likely way would be by being a murderer or involved in the commission of the crime.
The appellant complained about the hearsay rule to the European Court of human rights but failed in his application.
Next week we shall see another alarming application of the rule.