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UK: Hearsay trials?

01 July 1995

Convictions on the unchallengeable evidence of an informer or an undercover agent could become commonplace in our criminal courts if a Law Commission proposal on hearsay in criminal trials is accepted. The Law Commission proposes doing away with the hearsay rule, which prevents a witness giving evidence that "X told me he had seen Y committing the crime". The present rule, a cornerstone of criminal justice, is that all evidence must be capable of being challenged by cross-examination. The proposal is to admit hearsay evidence so long as there is a "good reason" why the second-hand witness cannot or will not attend court: death, illness, absence abroad or unwillingness to attend are given as examples. The police and security services have tried for some time to relax the rule to protect informers, but it is from the coroners' courts in Northern Ireland that the Commission appears to have drawn inspiration. There, army and RUC developed hearsay evidence into an art form, with the assistance of public interest immunity (pii) certificates signed by ministers, to ensure that officers did not have to come to court to give evidence and be identified. Coroner John Leckey tried to challenge the system by demanding the attendance of officers so they could be questioned, but was rapped over the knuckles by the Northern Ireland Court of Appeal. Now it seems the system designed for Northern Ireland is to be imported wholesale into the British criminal justice system. Law Commission consultation paper 138.