ABSTRACT
In a hutch in ‘Chippie’ Kearley’s garden in Christchurch, the police found amphetamines instead of rabbits. The drug squad said that while they were searching the property, seven people called at the door asking to buy drugs, and eleven others telephoned to ask if ‘Chippie’ had any drugs for sale. Kearley was prosecuted for possessing controlled drugs with intent to supply and, not surprisingly, police witnesses gave evidence of the visits and ‘phone calls to help establish the intent. In a judgment which certainly deserves full marks for effort – the five speeches cover 50 pages – the House of Lords held by a majority that this evidence was legally inadmissible. So the conviction was quashed: R v Kearley (1992). Lord Griffiths and Lord Browne-Wilkinson dissented. Said Lord Griffiths: ‘ ... as a matter of common sense it is difficult to think of much more convincing evidence of his activity as a drug dealer than customers constantly ringing his house to buy drugs and a stream of customers beating a path to his door for the same purpose ... In my view the criminal law of evidence should be developed along common sense lines readily comprehensible to the men and women who comprise the jury ... I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply, “The law is an ass”.’ In the light of this, what reasons could have induced the majority (Lords Bridge, Ackner and Oliver) to decide that the evidence should not have been heard? The first was that it was hearsay. In so deciding, the House finally resolved a long debated point: does the hearsay rule extend beyond statements intended as assertive, and include what are usually referred to as ‘implied assertions’? To prove X has body odour, clearly you may not call Y to say Z says he has: but can you do so by getting Y to say he saw Z walk away from X with a clothes-peg on his nose? Though commentators (like Archbold (1992) para 11-5) have seen this as a difficult point on which the authorities conflict, the majority in Kearley thought the law was already clear, and that implied assertions come within the ambit of the rule. Though the callers did not expressly say, ‘“Chippie” deals in drugs’, their words and acts – said their Lordships – were proved as impliedly asserting this: and therefore should have been rejected as hearsay. (Lord Griffiths and Lord Browne-Wilkinson, dissenting, thought otherwise: the evidence was admissible to show that Kearley had a market for his drugs, rather than because it contained implied assertions). By giving the hearsay rule a wide interpretation this case goes against the main thrust of the modern case-law which, backed up by various pieces of legislation, limits the rule by making more and more exceptions to it. These exceptions, what is more, have been mainly designed to let in hearsay evidence of direct assertions; like statements that potential witnesses have made to the police. These are usually thought to be more dangerous than implied assertions, for a number of obvious reasons. They are more likely to be detailed and circumstantial (and hence likely to carry more weight, even if false); they are more likely to contain distortions as the result of suggestive questioning; and they are more likely to contain lies, because it is usually easier to tell a lie than to act one. Indeed, a number of jurisdictions that keep the hearsay rule have thought it sensible to limit it to express assertions – as do the Federal Rules of Evidence in the USA, as Lord Bridge mentions in his speech. So this decision extends a previously contracting rule into an area where there seems to be less
need for it: and with important practical implications, because it thereby renders debatable quite a lot of evidence which previously everyone would almost certainly have assumed to be admissible. For example, to support the evidence of P that D uttered a threat to shoot him, can the prosecution now lead evidence that the other drinkers in the bar immediately fled? The decision spells more arguments about admissible evidence at trial, and more appeals on evidential technicalities. The second reason the majority gave for suppressing this evidence was that they thought it was irrelevant. What the callers said showed their intent to buy – but that, said the majority, did not prove that Kearley had the intention to sell. As Lord Oliver put it, ‘Can one, for instance, legitimately infer an intention to make a gift to charity from evidence of calls made by collectors seeking donations?’ The answer to this, surely, is that it all depends on what you mean by ‘prove’. The behaviour of the would-be buyers does not prove it conclusively, but it tends to suggest it – which is all we normally mean in the law of evidence by ‘prove’ – because people are more likely to try to buy a product from someone who makes a habit of selling it than from someone who does not. Buyers of drugs, unlike charity collectors, do not usually go systematically down a street, knocking at every door. If only one buyer calls at a given house that may be due to a hoax, a frame-up, or an error: but the more who do, the less likely such explanations are. The third factor underlying the decision seems to have been an uneasy feeling that evidence of ‘phone calls from anonymous people is easy to invent ... The difficulty with this as a reason for holding evidence inadmissible, however, is that it applies to so much else; it is as easy for bent policemen to plant drugs (or other cogent clues) as to fabricate ‘phone-calls about them. Underlying the speeches of the majority is the idea that if the exclusionary rules of evidence are an affront to common sense, so much the worse for common sense: what is apparently irrational is justified by the need to be fair to defendants. As Lord Oliver said at the end of his speech, the hearsay rule ‘has been evolved and applied over many years in the interests of fairness to persons accused of crime and if it is now to be modified that should, in my opinion, be done only by the legislature.’ This attitude needs challenging. The hearsay rule works against defendants as well as for them. In Kearley the House of Lords approved Harry (1986), where on similar facts the defence were not allowed to prove the ‘phone-calls, which were made to someone else, so suggesting that the drug dealer in residence was someone other than Harry. Furthermore, a major exception to the hearsay rule is confessions. In other words, we reject D’s out-of-court statements about the offence if he said that he was innocent, but let them in if he said that he was guilty. The cynical rationale for this is that what a person admits against himself is likely to be true: but yet, as the House of Lords affirmed in Blastland (1986), D is not allowed to prove a confession made by X that he, and not D, committed the crime for which D is now on trial. The truth, surely, is that the hearsay rule in its present form shuts out relevant evidence in such a way as to help the courts acquit the guilty, and to convict the innocent, with pretty much an even hand. In recent years, Parliament has made three attempts to reform the hearsay rule in criminal proceedings, each one more muddled than the last. Which makes it all the more depressing that the courts, when given the chance to knock some sense into it, refuse.’16
