‘Hearsay‐fiddles’ in the House of Lords

Abstract

The hearsay rule provides that a statement made otherwise than by a person giving oral evidence in court is inadmissible as evidence of the truth of its facts. A hearsay statement becomes admissible if one of the common law or statutory exceptions to the rule applies.' In 1964 the House of Lords held in Myers v DPP2 that the list of common law exceptions to the hearsay rule was closed; any further exceptions would have to be created by Parliament. Confessions of a defendant represented a well established common law exception to the hearsay rule.3 Arguably this exception only permitted the prosecution to adduce the confession; any exception permitting a defendant to adduce a confession of a co-defendant, in circumstances where that confession had either been excluded for the prosecution or not relied upon by them, was one unknown to English law.4 In the recent decision of the House of Lords in R v Myers,5 however, their Lordships allowed the confession of a co-defendant not relied upon by the prosecution to be adduced by a defendant as evidence of the truth of its facts. It will be argued that this represents the creation of a new common law exception to the hearsay rule by means of a 'hearsayfiddle'.6 The aim of the House of Lords was clear; to avoid the mechanical application of the hearsay rule in a way which would shield the truth. This is to be applauded. Yet by resorting to a 'hearsay-fiddle' rather than a more direct acknowledgment that the law of hearsay was being recast in a less restrictive mould, the House of Lords has left uncertainty about the operation of this new exception. We aim in this note to illustrate this uncertainty and to evaluate the soundness of their Lordships' reasoning. In doing so, we highlight the dangers of resorting to 'fiddles' as opposed to changing the law in an open and coherent