Practical Guide to Evidence 3rd Edition
London: Cavendish Publishing, 2004
This text is exactly what the title states, a “practical guide” to the law of evidence – in England. I emphasize that it is a book on English law. Unfortunately, therefore, it is of little practical value to Canadian readers. Even though our law of evidence derived from English common law, the English law of evidence now is markedly different from our own. The reason is that in England the law of evidence has been the subject of major legislative initiatives, with the result that the common law has been significantly changed. The law on hearsay stands as a perfect example. In civil cases the hearsay rule was abolished by the Civil Evidence Act of 1995. In criminal cases, although the hearsay rule remains, it has been modified by the Criminal Justice Act 2003. The Criminal Justice Act did away with certain common law hearsay exceptions, such as dying declarations and declarations against pecuniary interests. It should be noted that both of these exceptions were and are, at least in Canada, of questionable validity. The statute recognizes certain other exceptions and then goes on to create a “safety valve” to admit otherwise hearsay statements “when in the interests of justice”. Note that the statute creates a coherent regime on the admissibility of hearsay evidence.
This then provides the real value of the book for a Canadian reader; it shows how the law of evidence could, and arguably, should be reformed by thoughtful legislative intervention. The sad reality in Canada is that the Federal government shows absolutely no interest in whole scale reform of the law of evidence. The government has abdicated its responsibilities to the courts through what might be termed “Charter inertia”. By that I mean the government is content to let the courts mandate reform via the Charter. For example, our law on hearsay has been reformed through the Supreme Court of Canada’s decisions in R. v. Khan and R. v. Starr. The result is ad hoc change and no comprehensive plan or scheme.
English law has also been subject to change wrought by the European Convention on Human Rights. Mr. Allen provides a through analysis of how the Human Rights Act of 1998 has impacted on English evidence. The analysis bears remarkable similarity to the impact of the Charter in Canada.
Mr. Allen is both an academic and a barrister, which enriches the work because the law of evidence is both theory and practice. A good practitioner needs to understand both aspects of evidence. Mr. Allen in his preface to the 1st edition began with this observation: “With evidence, it is easy to miss the wood for the trees.” This is quite true and in order to understand evidence one needs to concentrate on principle as opposed to rules. This text provides a wonderful overview of evidence principles, as they apply to England.
The book’s strength is its clarity; it was a refreshingly easy read. Mr. Allen recognizes the informing power of examples and he uses them extensively. A particularly useful illustration involves legal professional privilege. In a nutshell there are two aspects to legal professional privilege: solicitor-client privilege and litigation privilege. To underscore the difference, Mr. Allen suggests that solicitor-client privilege involves communications made in a “straight line” between a solicitor and his or her client. Litigation privilege, on the other hand, involves a communication “triangle” between the solicitor, third persons and the client. [P. 303-304] This simple visualization underscores the difference between the two privileges.
I, therefore, recommend this text to the Canadian reader, not as a practical guide, but as a comparative guide as to how the common law of evidence could well be reformed. The author is to be commended for his clear and concise statement of the English law.
University of Manitoba