We cannot introduce arbitrary conditions or limitations; that must be left to legislation: and if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.
If we disregard technicalities in this case and seek to apply principle and common sense, there are a number of parts of the existing law of hearsay susceptible of similar treatment, ...
[4] The Law Commission[5] and Supreme Court committee[6] provided a number of reports on hearsay reform, prior to the Civil Evidence Acts 1968 and 1972.
[7] Previously, the Criminal Justice Act 1988 carved out exceptions to the hearsay rule for unavailable witnesses and business documents.
Direct evidence is given under oath (with potential criminal liability for perjury if the testimony is subsequently proven false), in the presence of the court and jury, and may be cross-examined.
Although the hearsay rule is directed only at references to statements asserted for the truth of their contents, the courts were alive to the dangers of circumstantial as well as direct evidence:[8] the hearsay rule operates in two ways: (a) it forbids using the credit of an absent declarant as the basis of an inference, and (b) it forbids using in the same way the mere evidentiary fact of the statement as having been made under such and such circumstances.The nature of the genuine danger of allowing a jury to make an inappropriate inference about the nature of such evidence has led to misunderstandings about the nature of hearsay.
The Act arose from a report of the Law Commission published in 1993[13] which criticised the previous reforming statutes' excessive caution and cumbersome procedures.
Documents created in the course of a trade, occupation, profession or public office (referred to as "business") can be used as evidence of the facts stated therein.
A typical example of this is doctor's notes in relation to an injured person, which is then adduced as medical evidence in a criminal trial.
Previous criminal records can be adduced (if otherwise admissible) under this section, but not normally any further details about the method of commission, unless it can be demonstrated that the data inputter had the appropriate personal knowledge.
Section 118 of the 2003 Act preserved the following common law rules and abolished the remainder: Hearsay evidence is permitted by agreement between all parties in the proceedings.
In a Bermudan case before the Privy Council, Sparks v R,[25] an American airman was accused of indecently assaulting a girl just under the age of four.
The Act sets out criteria in determining whether the interests of justice test are met, and provides for consideration of other relevant factors:[28]