LAW REFORM COMMISSION PUBLISHES REPORT ON CONSOLIDATION AND REFORM OF ASPECTS OF THE LAW OF EVIDENCE
EXPERT EVIDENCE: DUTIES OF EXPERTS SHOULD BE SET OUT IN LEGISLATION; DUTIES SHOULD INCLUDE OVERRIDING DUTY TO COURT TO PROVIDE TRUTHFUL, INDEPENDENT AND IMPARTIAL EXPERT EVIDENCE
HEARSAY EVIDENCE: BUSINESS RECORDS SHOULD BE PRESUMED ADMISSIBLE IN CIVIL AND CRIMINAL CASES
EVIDENCE BY OATH OR AFFIRMATION: PERSON CHOOSING TO GIVE EVIDENCE BY AFFIRMATION INSTEAD OF RELIGIOUS OATH SHOULD NO LONGER BE REQUIRED TO STATE HE OR SHE HAS NO RELIGIOUS BELIEF
Wednesday 18th January 2017: The Law Reform Commission’s Report on Consolidation and Reform of Aspects of the Law of Evidence will be launched by Mr Justice Seán Ryan, President of the Court of Appeal, in the Distillery Building, Church Street, Dublin, at 4.30 pm this afternoon.
Report deals with: expert evidence, documentary and electronic evidence, hearsay evidence and consolidation of 19 Evidence Acts
The Report follows from 4 consultative papers published by the Commission, dealing with: (a) expert evidence, (b) documentary and electronic evidence, (c) hearsay evidence and (d) consolidation of existing Evidence Acts.
The Report considers each of these aspects of the law of evidence, and makes 87 final recommendations for their reform, as well as recommending the consolidation of the existing Evidence Acts. The Report also includes a draft Evidence (Consolidation and Reform) Bill (containing 110 sections) to implement these recommendations. Among the recommendations are:
Recommendations on expert evidence
The Commission’s Report recommends that, to avoid the risk that an expert may be seen as the “hired gun” of the party who engages him or her, the following 4 main duties of an expert witness, whether giving evidence in a civil or criminal case, should be set out in legislation:
an overriding duty to the court to provide truthful, independent and impartial expert evidence;
a duty to state the facts and assumptions (and, where relevant, any underlying scientific methodology) on which his or her evidence is based and to fully inform himself or herself of any fact that could detract from his or her evidence;
a duty to confine his or her evidence to matters within the scope of his or her expertise; and
a duty to his or her instructing party to act with due care, skill and diligence, including a duty to take reasonable care in drafting any written report.
To emphasise the importance of these duties, the Report recommends that if an expert fails to comply with them a court may rule inadmissible his or her evidence.
The Report also recommends that, because the immunity of an expert from being sued is difficult to justify it should be abolished, but that it should be replaced by a statutory provision that an expert should be capable of being sued only if the evidence is given in a grossly negligent manner, that is, falling far below the standard of care to be expected from that expert.
The Report also recommends that the Minister for Justice and Equality should publish statutory codes of practice for expert witnesses, prepared by a representative group of persons with suitable knowledge of the relevant areas; and that expert witnesses would be required to comply with the contents of such a code of practice.
Recommendations on hearsay evidence, including business records
A key principle of the law of evidence is that, in general, evidence should be capable of being tested in court, especially by cross-examination. Hearsay evidence (which is a statement, whether verbal or in a document, made out of court by a person who is not called as a witness and is presented in court to prove the truth of the fact or facts asserted in the statement) is, in general, not admissible because it cannot be tested by cross-examination. This long-standing approach is reinforced by the constitutional requirement of fair procedures.
A number of exceptions that allow hearsay to be admitted in evidence have been developed over the years by the courts. The Report recommends that hearsay evidence should only be admissible, whether in civil or criminal cases, under these exceptions (such as for confessions, which are subject to many important protections) or under the reforms proposed for business records, discussed below.
The Report recommends that, in general, business records (whether electronic or paper records, such as emails or letters) should be presumed to be admissible in both civil and criminal cases (subject to procedural requirements to ensure that the records are reliable). Business records, such as hospital records for personal injuries cases, are among the most commonly adduced form of hearsay evidence.
Making business records admissible in civil cases, with the addition of a presumption of admissibility, means that admitting them in evidence would no longer depend on the agreement of the parties, which is sometimes only given when the case is about to start, and a witness may therefore be on stand-by to confirm that the record has been properly compiled in the course of business. These proposed changes should therefore assist in reducing the cost of civil proceedings, including personal injuries actions.
Business records have been admissible in criminal cases since the enactment of the Criminal Evidence Act 1992, but because the presumption of admissibility proposed in the Report would also apply to criminal cases, this could also reduce the need for example for Gardaí to be on stand-by during a trial to confirm that a specific written record complied with the requirements for business records.
The proposed reforms concerning business records would lead to a single set of clear rules for both civil and criminal cases, and this would also allow for the replacement of a patchwork of overlapping laws in this area, including the Criminal Evidence Act 1992 (which applies in criminal cases only) and the Bankers’ Books Evidence Act 1879 (as amended, which applies in both civil and criminal cases but is limited to the records of licensed banks).
Recommendations on documentary and electronic evidence
The Report discusses the challenges faced in both civil and criminal cases where huge numbers of documents are presented in evidence (especially documents generated electronically), and the Commission therefore recommends that, subject to suitable safeguards (based on those that have been in place for many years in Australia and new Zealand), in such cases a written summary of such voluminous documents may be used to prove such documents in place of the documents themselves.
The Report recommends that, in relation to electronic signatures which are becoming an increasingly important part of many transactions, there should not be a general requirement to use an advanced electronic signature based on Public Key Infrastructure (PKI), and that such a requirement should only be prescribed on a case-by-case basis.
The Report also recommends that an electronic signature that complies with the 2014 EU Regulation on Electronic Identification and Trust Services for Electronic Transactions (the e-IDAS Regulation) should be given the same legal effect as a handwritten signature and therefore should be admissible on the same basis.
Recommendations to consolidate and reform Evidence Acts, including giving evidence by affirmation
As well as making recommendations to reform aspects of the law of evidence discussed above, the Report includes an examination of 18 Evidence Acts, 15 of which precede the foundation of the State in 1922. The Commission recommends that some of these Evidence Acts should be repealed because they are obsolete, while others should be retained subject to suitable updating, as provided for in the Commission’s draft Bill included in the Report.
Among the pre-1922 Acts examined in the Report are the Oaths Acts 1888 and 1909 which provide that evidence must be given in court either by swearing an oath to tell the truth on a religious text or by swearing to tell the truth by an affirmation. An oath and affirmation have the same legal effect, including for the purposes of a charge of perjury, but the 1888 and 1909 Acts require that a person who wishes to give evidence by affirmation must state that he or she does not have any religious belief. The Report recommends that a witness should continue to testify either on oath or by affirmation, but that a person choosing to give evidence by affirmation should not be required to state that he or she does not have any religious belief.