ABSTRACT
Historically, there were two main issues attached to the admission of hearsay evidence. The first related to the potential distortion or error in recounting a statement. The second was the inherent difficulty in cross-examining a witness whose testimony relates to a hearsay statement because it was not percipient evidence i.e. they did not ‘perceive’ the events about which they are giving evidence themselves. In 1603, in his trial for treason, Sir Walter Raleigh cried out ‘let my accuser come face to face and be deposed!’ – his contention was that he had been deprived of his common law right to have his counsel cross-examine the witness that had given evidence against him. This common law safeguard helped protect the right to a fair trial – it prevented an accused being convicted on the basis of evidence that could not be tested. However, the existence of either of these two issues did not preclude hearsay evidence from being admitted – with many judges taking the view that the focus should be on the weight attached to this evidence rather than purely on its admission. Earlier in the book we discussed how such an inquiry is a factual one for the jury. In civil proceedings, the result of the Civil Evidence Act 1968 was to render most hearsay evidence admissible as evidence in civil cases – later the Civil Evidence Act 1995 completely abrogated the rule.
